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Ely
Ely, Counselor at Law
Category: Family Law
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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2 Questions re divorce decree in state of Delaware regarding

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2 Questions re divorce decree in state of Delaware regarding home/property.
My divorce decree (12-20-2011) stated my husband would get possession of marital residence. He agreed to finance or otherwise renegotiate the mortgage to remove wife's name from mortgage, from any and all obligations within 120 days. He waited too long and now due to real estate downfall- the house is worth what is owed on it- no equity. At this time he cannot get financed by a bank. He is now disabled, his mother is paying the mortgage. I want my name off and to not be responsible. The divorce decree says he is responsible for payment, debt, obligation but my name is XXXXX XXXXX mortgage so I am still responsible in the eyes of the law or bank correct?
I know that I can file he is in contempt. If he cannot get financed- is the only thing that the court would say is to sell the residence?
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my reply.

I am sorry for your situation. You have just stumbled unto one of the more confusing parts of post-divorce matters.

You see, when someone receives the home in a divorce, the court cannot 'void' a contract between the divorcees and a third party (the lender).

Ergo, there are generally two things done in the divorce decree:

1) You would quitclaim the home to him (as you may have done); and;
2) The decree orders him to REFINANCE within a certain amount of time with the lender, to take your name off the mortgage contract.

Now, if step 2 is not done, you still remain a party to the mortgage for payment purposes. Remember - the Judge cannot void a contract of a third party (the lender).

For the time that the refinancing is pending, he is responsible to make payments for the mortgage unless the Court states otherwise. If he does not, and if the lender comes after you, then you can seek indemnification from him in Court for your liability.

Many divorce decrees contain a section that state if he does not refinance in time either due to sloth or inability, then the Court will either (1) give the property to you, (2) sell the home and split the proceeds, or (3) do whatever else the Court feels is equitable (fair).

So the first thing to do is to check the decree and see if there is any verbiage as to what is to happen if he does not act.

The divorce decree says he is responsible for payment, debt, obligation but my name is XXXXX XXXXX mortgage so I am still responsible in the eyes of the law or bank correct?

In the eyes of the bank, yes, but you can seek indemnification per the decree. Check it to see what it states. You will likely have to file a CONTEMPT motion against him in Court to get the Court to order him to act or for the Judge to order the home sold - see here. Very likely, the Court will then:

1) Require him to catch up and also to indemnify you for any liability for the mortgage, and
2) Refinance by THIS date, or else else order it sold.

Of course, an attorney is recommended to file this motion.

I know that I can file he is in contempt. If he cannot get financed- is the only thing that the court would say is to sell the residence?

Yes. Most of the time, the decree will state to sell the residence and split the proceeds, but sometimes the Court will also simply give the property to you. So it is best to check the decree to see what avenue of relief it states the Court will provide. If nothing is stated, then the Judge rule son a case by case basis at time of the contempt motion.

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