Southern California Family Law Blog


joint mortgage division

How is joint mortgage divided during divorce?

A divorce can be filled with feelings of anger, spite and regret. For many, there was once the hope of building a happy life together, and now they are left with the daunting thought of how to move on without each other. One of the most important issues in the divorce process is determining how all of the property, assets and debts obtained during the marriage is going to be divided between you and your spouse.

Usually, the most significant piece of property in a divorce is a home, and the major debt from the marriage is the mortgage on that home. Generally, when a married couple purchases a home during their marriage, the deed and mortgage of the home is held “jointly.” This means that both spouses are usually listed as the owner of the home, and both are responsible for the mortgage (or the debt) that is owed to a lender for that home. When this situation occurs, how does the divorce process properly divide property that is legally owned by both you and your spouse? How can the court fairly separate property that both you and your spouse called home?

These very important questions, unfortunately, may not be easy to answer. If you are going through a divorce and you and your spouse owned a home with a mortgage, it is very important that you consult with a Riverside divorce attorney that is knowledgeable in division of property issues. Wallin & Klarich has experienced divorce attorneys that have successfully handled these types of complicated matters for over 30 years, and our skilled attorneys will be able to advise you on the best course of action at all stages of your case.

The Court’s Options

Usually in a divorce, a home purchased during the marriage can’t be awarded to both spouses. Unless you and your spouse have an agreement in place before the marriage regarding who will get to keep the home and the mortgage after the divorce, the court will have to make that decision after hearing from both sides.

Sell the Home

If you and your spouse both do not want to keep the home, generally the court will order that the home be sold. Any profits made from the sale (after the mortgage is paid off) will then be divided between you and your spouse. However, there may be certain factors that the court must consider first, which may affect the division of the profits from the sale. For example, if you used separate property to make a down payment when you first purchased the home, then you may be entitled to a “credit” owed to you for that down payment, which would be taken from a portion of the “equity” in the home.

Home Going to One Party

If both you and your spouse want to own the home after the divorce is finalized, the court will have to decide who gets the home. The court will review all aspects on how the home was acquired, such as:

• How much money you and your spouse each contributed to the down payment
• Who made mortgage payments during the marriage, and
• Whether you or your spouse are financially capable of continuing the mortgage payment after the divorce is finalized

The court has broad discretion in making a decision of who gets the home, and it is imperative that you have an experienced divorce attorney to lay out all the arguments in your favor and address all concerns the court may have. The court also has the option to force the sale of the home despite both parties wanting to keep the home.

Joint Mortgage Issues Arising after Divorce

In some cases, there are issues that arise with a joint mortgage after a divorce has been finalized. For example, although one spouse was awarded the home and the responsibility of making the mortgage payments in the divorce judgment, the other spouse could still be held liable for mortgage payments by the mortgage lender. In that situation, should the spouse that owns the home fail to pay the mortgage payments, the mortgage lender could seek payments from the other spouse. If the home is foreclosed on, it could have a negative impact on both parties’ finances and credit. If you did not have legal representation when you went through your divorce and a home and mortgage was included in your case, it is very important that you have an experienced family law attorney review your case.

Contact the Riverside Divorce Attorneys at Wallin & Klarich

A divorce can be difficult and costly, which is why it is important to have an experienced Riverside divorce lawyer review your situation and advise you as to the best options for your case. The attorneys at Wallin & Klarich have been successfully handling divorce cases for more than 30 years. You can rely on Wallin & Klarich to help you obtain the best possible result in your case.

If you are going through a divorce, it is essential that you get the assistance of an experienced divorce attorney from Wallin & Klarich. With office locations in Los Angeles, Orange County, Riverside, San Bernardino, San Diego, Victorville, West Covina, Sherman Oaks, Torrance and Ventura , there is a Wallin & Klarich attorney available wherever you happen to live.

To speak with an experienced Riverside divorce attorney about your case, please call us today at (888) 749-7428 for a free phone consultation. We will get through this together.

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