What are my rights regarding the refinancing of the marital home after a divorce?

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What are my rights regarding the refinancing of the marital home after a divorce?

We are in the process of a divorce. We are upside down on our mortgage and a program is not available to us right now to get my husband off the mortgage. I am in a position to pay for the mortgage myself and have been doing so for a few months. My husband wants to buy property. He says that is my responsibility to refinance and that paying down the loan to debt (which is about $25,000) to make a program available is also my responsibility as is closing costs, appraisals etc. Is this true?

Asked on October 5, 2011 under Family Law, New Hampshire

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

I think that you need to go and speak with an attorney in your area as soon as you can. You and your husband have equal rights and equal reponsibilities with regard to the house and the debt owed.  Now, money earned during a marriage is considered marital funds so you can not really make the argument that you paid the mortgage to your advantage only. Nor, though, can he force you to have to pay down the loan debt even if it is with marital funds.  But if you have already filed for divorce then a date certain in time has come where you can ow say that the funds that you are paying the mortgage with are separate property and that you should be entitled to a set off for that portion of his responsibility you are paying.  And if you chose to pay off the debt to allow him to refinance and get you off the mortgage (a big consideration here) then you can also agree that he owes you those monies in another way or as a set off to another marital asset (like relinquishing retirement rights)? You need a good negotiator.  And him an attorney too.  Good luck. 


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