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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 11842
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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After separation we refinanced the mortgage to get cash out

Customer Question

After separation we refinanced the mortgage to get cash out loan to pay off marital debt at a lower interest rate. The amount is now encumbered in the mortgage. I paid my husband his share of the equity in buy-out but am now still paying the loan that represents marital debt in mortgage. One lawyer told me if it were just an interest reduction that is one thing but the debt encumbered in the loan represents marital debt we both owe. I want to be reimbursed for his half of the marital debt that is owed in the mortgage in the settlement. Your thoughts on how I can get him to pay for the marital debt he owed and co-signed for with the cash-out loan after separation in my settlement. Please provide me case law references to help with the discussion in mediation to assign him his share of debts he created after separation. He has the equity share owed with the buy-out. I want the marital debt portion divided and assigned to him to reimburse for a fair settlement. It was his debts, he cosigned for the cash out and got the benefit of both what he got from creating the debt and then having this debt interest reduced in refinance. But the marital debt is still encumbered and owed. I don't think it fair that I should pay for his share of this debt. He has the profit but should contribute to paying off the debt.
Can you help me make the case for reimbursement for his share of marital debt still owed.
Submitted: 11 months ago.
Category: Family Law
Customer: replied 11 months ago.
One of the lawyers in your business I have used in the past is named Gerald. He was excellent, thorough, and understood my need to talk the talk of lawyers, case law - appellate if possible - to present to mediators who have posed a problem for me in fashioning a fair settlement. I don't mind doing the reading and research but I am asking for help in identifying the best way to move forward in getting other lawyers to deal with the issues as in this situation - marital debt that we both owe, a refinance we both entered into after separation for our mutual benefit that represents that debt in the mortgage but nonetheless is the marital debt that generally is accepted that both parties owe. My husband has the means to pay his fair share. I need to put pressure on my representative to make the legal case to recover this part of debt he owes. Please help me locate the law, case law in California that will help me recover what he should have to pay in this matter. I hate to say it but the lawyers on our case seem to be cookie cutter types who don't want to do the research or get experts to help me make my case for a fair settlement.
Expert:  AttyHeather replied 11 months ago.

Hi! I'm Heather. I've been a practicing attorney for the last 15 years, and I'd be happy to assist you for informational and educational purposes.

Expert:  AttyHeather replied 11 months ago.

I've been reading and re-reading your question, and I'm not sure I understand the facts fully. Are you selling the home, or are you being awarded the home? So you came up with cash and paid him his share of equity? If there was cash, I do not understand why that would be paid to him rather than paying off the debts that were consolidated into the mortgage. I'm just not sure I'm getting the facts straight and I need you to clarify the facts so that I can give you on-point help.

Customer: replied 11 months ago.
I did a buy-out of his equity interest and am keeping the home with an interspousal deed of transfer. It's done. The house is now mine and I continue to pay for the mortgage. However, since we separated some years back we agreed to refinance at that time following our separation to get cash out to reduce the interest on consolidated marital debt that accrued during the marriage. Because he cosigned for the cash-out loan he took on that loan with me following separation and I believe should have to pay his half of the that debt which represents "new debt" for old debt but is debt that we both owe together to my way of thinking. I am asking for reimbursement for his half of the debt - the cash-out loan he co-signed since now I am paying this encumbered debt in the mortgage with the refinance to get the home in my name and remove him from title. I believe a reimbursement in settlement is a fair way for him to pay his share of this loan for marital debt at a lower interest rate. He created the debt, he got the benefit of a lower interest rate and should pay his share of the loan. I believe it is unfair for me to have to pay for his share of the loan he co-signed after separation when he got the money for his debts. I am paying for my share since it is encumbered in the loan which is the buy-out of his equity interest in the home.Let's say for example we got a separate loan after separation which is owed that wasn't part of the mortgage. Wouldn't we both be responsible for our half of that loan if we cosigned and both received the funds to use for our debts?What is the case law governing this issue and are there any cases - appellate cases - that address any rulings regarding reimbursments or assignment of debt to each party in settlements that I can use in presenting my case for a fair settlement of marital debt like this situation.Do you have a research engine to find such cases that I can review and help me formulate an argument in my favor in settlement ? I don't think it fair for me to pay his share of this debt no matter where it is, encumbered in the mortgage or if it were a stand alone debt outside the buy-out of his equity interest. I need to present the issue in settlement as a reimbursement owed to me since I am taking on the mortgage in the buy-out. You are right it would have been better to have that condition as part of the "sale". But I was approaching the assignment of his share of this debt as a reimbursement in the settlement with other factors we are working through. So the question is finding case law to support the reimbursement of this payment of debt ( his share to me from the proceeds he received in the equity payment), since I am paying my share of the debt in the refinance, encumbered in the mortgage in the settlement. I can either pay down the mortgage or help my daughter with her college costs. He cosigned for the loan after separation and got the use of the money from the cash-out loan. I want help to make the case he should pay his share of this debt.