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I am currently going through a divorce and my husband holds the mortage on our home. I live in a Community Property State and eventhough my name is XXXXX XXXXX the mortage or on the title I am being told I may be responsible for the money my husband still holds on the house. The home is going into foreclosure. Do I have an options?
State/Country relating to Question: New Mexico Already Tried: My lawyer is telling me I have to file bankrupcy. I really would like to avoid this. It does not matter to my soon to be ex but it does matter to me.
Unfortunately, your attorney is correct. If you go into bankuptcy, you can protect your home. However, until the divorce is finalized, you are considered joint tenants and owners of the home and therefore you are liable for the mortgage monies owed to the bank. Once the divorce is finalized, the court as part of its decision, will either tell one of you to keep the house and buy out the other spouse, or order that the house be sold and you split the proceeds. Either way, at that point you would not have to worry about the house.
Ok, I understand that, but my soon to be ex is refusing to pay the mortage and since the mortage is in his name I cannot work with the bank to help resolve this matter. If the house is sold the bank may not recover it full investment. Therefore there will be no profits to split, only an outstanding debt that is no fault of my own. How can I plend this case to the judge?
Thank you for the additional information. If the bank sells the house at a foreclosure sale, and there is still a balance owed, then the bank would need to petition the court to grant a deficiency judgment. In that case, the bank would have to serve both you and your soon to be ex, which would give you a right to make a motion to absolve yourself from liability on the deficiency based upon your soon to be ex's willful neglect to pay the mortgage. In addition, if you are currently in the midst of a divorce proceeding, you (or your divorce lawyer) can notify the court that your husband is intentionally devaluing/destroying the home, a major marital asset, which would harm you financially. The judge then has the discretion and authority to order the husband to make any necessary payments or work with the bank to prevent the foreclosure or a deficiency.
Attorney
10+years of experience in all matters of civil litigation and Hearing Officer/Arbitrator