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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 101351
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My wifes ex husband is on the mortgage and he refuses to pay

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My wife's ex husband is on the mortgage and he refuses to pay his half of the payment for 16 months, he has also refused to pay child support for 18 months now. We were planning on moving to Florida to get out of financial distress as we both have jobs down there and the school system is rated very high. He refuses to let her take her children who want to go with us the oldest being 12 years old and could be heard by the judge. Her ex proposed to her that he would move back in the house and that she would have to pay him child support much higher than what he was supposed to be paying as well as 1/2 the mortgage payment. Keep in mind their agreement is for 50/50 shared custody but he has changed plans so often that we have had them well over 60% of the time. He has also neglected medical issues twice with the oldest and once with the youngest during his time and in which my wife had to take time off from work on his week to get them to the doctors because of his reluctance to do so. Seems totally unfair. I was wondering if there is anything she can do on all matters presented what are her legal grounds?
Submitted: 6 years ago.
Category: Family Law
Expert:  Ely replied 6 years ago.
Hello,

Welcome to JustAnswer and thank you for the opportunity to assist you. Please remember that there might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.

May I ask if she is not allowed to move outside the state via the divorce decree, or is this is simply something that he is imposing?
Customer: replied 6 years ago.
This is something he is imposing
Expert:  Ely replied 6 years ago.
Thank you.

Let us deal with this one issue at a time.

Moving
Just because he does not want her to move, does not mean that she cannot. He, once he learns that she wants to move, can file a Motion for Temporary Restraining Order and ask for a geographical restriction. That doesn’t mean that he would be successful - and I assume he will not be. He would need to prove that the move is “not in the best interest of the child,” and/or is being done to simply make visitation harder. Normally, if the party moving has reasons such as family/work/etc. and a plan for the future, the Judge usually lets them go. So I would not even fear this.

Child Support
She has to file something called a Motion for Enforcement by Contempt, and set it for a hearing. There is no excuse why he should not be paying the support. He'd have to explain himself to the Judge and failing an adequate explanation, would be admonished, fined, and jailed (if repeatedly refuses to pay). The Court at her request can also set up a date for later to touch base to see if he is indeed paying.

Neglect
Along with that contempt, she can also file a Motion for Modification to modify the decree that states that he should have the children only supervised, or only overnights, arguing that he is incapable of providing adequate parenting. The Judge may agree, or may make him take a parenting class, or both.

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Customer: replied 6 years ago.
Where he is still on the mortgage and has refused to pay is he still responsible for his share? He has refused to remove his name thinking he is going to get 50% of any profit, and keeping my wife from refinancing as they still take his income into account. His only proposal to my wife has been for him to move into the house, she pay him support, and for her to pay half the mortgage payment. Can he do that?
Expert:  Ely replied 6 years ago.
Oh, of course. I am sorry, I was so engrossed in your other issues, I did not touch base on this.

No, he cannot do this. That issue would go under the Motion for Contempt along with the child support issue, since he is violating the decree.

I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work; I receive no credit for my time with you unless you press ACCEPT.

If you still need to clarify something or seek more information, just use the INFO button and I’d be more than happy to follow up to your satisfaction! There is no fee for follow up questions before or after an accept, should you wish to continue in the thread, and I encourage you to do so should you need clarification!

While the legal system tries to be inclusive of every possibility, sometimes, people are morally wronged but have limited legal avenues to seek relief. If so, please understand that this is not the expert’s fault, but the way of circumstance.

If you feel that I went an extra step to help, a bonus is always appreciated!

You can always request me for a future advice through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to begin the question with “This Question is for Eli…”
Customer: replied 6 years ago.
The one last thing you left out is that is he legally responsible for 50% of the mortgage payment because of his refusal to remove his name from the mortgage and it was not dealt with in court as well?
Expert:  Ely replied 6 years ago.
Who gets the responsibility for paying the mortgage in the decree?
Customer: replied 6 years ago.
It does not state who gets responsibility for payment it only states my wife is allowed to live in the house so they could keep the children registered in the same school.
Expert:  Ely replied 6 years ago.
Thank you. Does it say who the house goes to then, once the children are grown, i.e. does it give actual ownership of the property to either party?
Customer: replied 6 years ago.
No it does not, nothing in there pertains to the house except for the fact that she would reside here with this being primary residence for her and kids. He has not paid a dime on it beginning Dec. 1, 2009.
Expert:  Ely replied 6 years ago.
Thanks, and last question - when was the house purchased - before or after marriage? Joint or only one person's funds?
Customer: replied 6 years ago.
The house was purchased during marriage and it was a joint purchase.
Expert:  Ely replied 6 years ago.
Thank you. It seems here that here, she received the property. But the Judgment is unclear if both of them or just her is/are responsible for the mortgage.

Along with the Motion for Contempt (child support), you can file a Motion for Clarification. This motion would clarify the decree as to the responsibility and affirm the debt on the party that owes it.

I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work; I receive no credit for my time with you unless you press ACCEPT.

If you still need to clarify something or seek more information, just use the INFO button and I’d be more than happy to follow up to your satisfaction! There is no fee for follow up questions before or after an accept, should you wish to continue in the thread, and I encourage you to do so should you need clarification!

While the legal system tries to be inclusive of every possibility, sometimes, people are morally wronged but have limited legal avenues to seek relief. If so, please understand that this is not the expert’s fault, but the way of circumstance.

If you feel that I went an extra step to help, a bonus is always appreciated!

You can always request me for a future advice through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to begin the question with “This Question is for Eli…”
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