Family Law Questions? Ask a Family Lawyer Online.
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Good morning. I certainly understand your situation and concern. If the home was purchased during the course of the marriage, it would be considered a marital asset. As such, you both would have and share a legal right/interest in it. When you file for divorce, the Judge is going to send the case to mediation. The purpose of doing this is to try and get you and your wife to agree and settle on the distribution of the marital assets, debts and any other issues which a party may have raised, during the divorce proceedings ( i.e. child support or alimony). If that can not be agreed upon, then the Judge would step in and make the final decision. In this case, it would first need to be determined who will be awarded the home. If she wants to live there, the Judge may require that she pay the mortgage. If she can not and you do not want to live there either, the Judge may order that the home be sold and the profits shared. At the same time, the Judge is going to look at the financial situation of the parties. It is not uncommon for the judge to award the home to one party and make the other party continue to pay each month, if they can afford it. If you are unable to afford the home, you will want to ask that the home be sold, to avoid the loan going into default and being foreclosed on. Your wife will not likely be able to have it both ways, where she lives there and does not pay or contribute to the mortgage, once you separate and divorce. The reason being, is that if you can not afford the payments on your own, the home will be lost. It makes no sense for the Judge to allow that, if there are alternatives, such as selling it or even renting it and having each party retaining their interest in the home.