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Loren
Loren, Lawyer
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Assume a prenup agreement states the husband will make the

Customer Question

Assume a prenup agreement states the husband will make the mortgate payment if a divorce action is filed.
Blacks Law dictionary says: What is MORTGAGE PAYMENT?
A regularly scheduled amount owed that includes a portion of principal and interest paid by the home loan borrower to the lender. Real estate taxes and property insurance may be a part of the payment, if part of the loan agreement. The original loan amount is paid by the principal portion. The interest portion is paid to the lender.
Now in divorce husband has been paying the mtg, the interest, and the escrow for taxes and insurance just like he did bfore divorce. But now he wants to only pay the mtg and interest and quit paying the escrow for taxes and insurance.
Question: why not let the Judge make this decision as opposed to making an agreement with him letting him alter the prenup?
Submitted: 10 months ago.
Category: Family Law
Expert:  Loren replied 10 months ago.

Good afternoon. I am Loren, a licensed attorney and I look forward to assisting you.

There is nothing wrong with asking a judge to rule on the mortgage payment obligation, other than the added expense of having your attorney have to conduct a trial. Otherwise, it is perfectly legal and reasonable.

Expert:  Loren replied 10 months ago.

Did you have further questions? Have I answered your question?

Customer: replied 10 months ago.
I know it's legal to ask. My question is in regards ***** ***** not let the Judge rule because it can be appealed while an agreed order can not very well be appealed plus since there is several hundred thousand dollars over 35 years to be gained if spouse pays... plus altering the prenup by agreeing with the spouse to let him pay less than the prenup could weaken it's value ... and did you read about the definition of mtg payment? If he has been paying it and the legal defintion says it has to be paid monthly why not try to get the Judge to rule in my favor ( btw... i am not in court.. i am just trying to get some opionion regarding a hypothetical matter)... so the question includes the definition and includes why make an agreement that can't be appealed and may weaken a legal prenup agreement
Customer: replied 10 months ago.
may be this should be Shepardized.... words: legal definition of mortgage payment + prenup ??
Expert:  Loren replied 10 months ago.

The main reason to resolve it without a hearing is that trials are a crap shoot. They are difficult to predict and a settlement is usually preferable if it is fair.

The definition for you is not going to be found in Black's. Your "mortgage payment" is going to be found in the terms of the mortgage where it is likely a defined term.

A settlement will not weaken a prenup. It will likely have the opposite effect since it will address an issue of vagueness and make it less vulnerable to attack.

Maybe it should be Sheperdized, and also run through a Lexus search, as well. For that, however, I suggest you retain local counsel, as extensive case research is not really cost effective at these prices when the subscriptions for Lexus run hundreds of dollars an hour.

Customer: replied 10 months ago.
The mortgage states that the insurance and taxes must be paid along with the principal and interest. So, I said Blacks dictionary defines the meaning of mortage payment by saying it is what the note says it is.I don't think you are correct saying a change would strengthen the agreement!
Expert:  Loren replied 10 months ago.

I am sorry you do not think I am correct. Do you have much litigation experience? I have been doing this for over 30 yrs.

Typically, the mortgage payment is the amortized principle and interest. The escrowed funds are not, as a general rule defined as the "mortgage payment". They are an additional monthly charge, but not the "mortgage payment", as they are not amortized in the loan. So, if you can get the other side to agree that, at least, a portion of the escrow is "mortgage payment", you may want to jump on it. Though, you will, of course, want your own attorney to confirm this.

Customer: replied 10 months ago.
A mortage payment is not defined soley as paying principal and interest although that can be part or all of it... It is the NOTE signed by the parties that defines the details of the mortgage payment!
What is MORTGAGE PAYMENT? the legal definition is:
A regularly scheduled amount owed that includes a portion of principal and interest paid by the home loan borrower to the lender. Real estate taxes and property insurance may be a part of the payment, if part of the loan agreement. The original loan amount is paid by the principal portion. The interest portion is paid to the lender.
so, since the note requires monthy payment to include insurance and taxes, then it follows that the payment IS defined as PART of the mortgage payment!
Expert:  Loren replied 10 months ago.

Does your note define the escrow payments as "mortgage payment"?