Spouses who are considering separating or filing for divorce have numerous questions. Divorce is a step into the unknown for many people. Your first divorce can be particularly harrowing and unexpected issues crop up. Family lawyers are often asked questions like ‘Can my husband stop paying the mortgage during divorce in Maryland?’
Many people hire divorce lawyers to help them with the division of marital property in Maryland. One of the first things family lawyers do is help their clients work out which assets are jointly owned and can be split during a divorce and which ones are owned by the spouses as individuals. This is not always as straightforward as it sounds. The family home is often the most important joint asset and the most hotly contested one during a divorce. One of the parties may have decided he or she has no interest in the home, or the other should buy him out. This does not mean a husband or a wife should stop paying the mortgage during a divorce.
In some cases, a husband stops paying the mortgage out of spite. He may be angry that his estranged wife is still living in the family home. Alternatively, he could just be too broke to make mortgage payments. It always makes sense for the parties to come together and talk about their problems before they spiral out of control. A family lawyer can help them resolve their differences before it’s too late.
Baltimore divorce lawyer Randolph Rice looks at the question ‘can my husband stop paying the mortgage during divorce in Maryland?’ No information included in this blog is intended to constitute formal legal advice.
Who Is Responsible for Paying the Mortgage During a Divorce in Maryland?
You may have separated but that does not mean your finances suddenly separate. Many separated people retain joint accounts and share mortgages. Even if your husband has moved to another location, he is typically responsible for joint debts. The largest joint debt is usually the mortgage. You should still pay your lender even if you are separated and filing for divorce.
How Do You Know if Your Mortgage Is a Joint Debt?
Marital debt is a debt traceable to the acquisition of marital property. If spouses purchase a home together and make the down payment and mortgage payments from a joint bank account, the mortgage is a marital debt. However, the divorce courts do not enforce mortgage payments in the same way as they enforce child support. Non-payment problems are contractual issues between the parties and their lenders.
Marital property is defined as all the property that you or your spouse acquired during the course of the marriage. It can also include property acquired “individually” during the marriage. Marital property usually includes houses, joint bank accounts, businesses, automobiles, furniture, stocks, bonds, pensions, jewelry, retirement plans, and IRAs acquired during the marriage. The person liable for paying the mortgage during a separation is the one whose name appears on the mortgage note. Usually, the names of both parties are on the mortgage note. If both of your names are on the mortgage, you are both liable to pay it. A failure to make payments or late payments impacts both parties’ credit reports and they may incur additional penalties.
A mortgage is usually a joint debt. No party should stop paying the mortgage unless he is no longer required to make payments after a divorce settlement. Although you can’t force a spouse to make mortgage payments, you can raise his failure to make payments during the divorce hearing.
What Happens to the Family Home During Divorce in Maryland?
What happens to the family home during the divorce is often the most pressing question during a split up. Some parties address this in a separation agreement. One of the parties may remain in the home with children while the other moves out. Often one of the parties ‘buys the other out’ and retains the home. When the parties can’t agree, the divorce courts step in.
Under Maryland law Section 8-201, the family home is defined in the following way:
- (i) Property that was used as the principal residence of the parties when they co-habited;
- (ii) Property owned or leased by one or both of the parties at the time of the divorce proceeding; and
- (iii) Property that is being used or will be used as a principal residence by one or both of the parties and a child.
Property acquired by one of the parties before the marriage is not usually marital property but that can change if both parties paid a mortgage on it rendering it part-marital property.
Homes acquired by gift or inheritance or property that is excluded from divorce proceedings by a valid agreement is typically not considered a family home.
If the parties fail to reach an agreement, the court will often order the sale of the marital property. In Maryland, the parent with primary custody of minor children can request “temporary use and possession” of the home for up to three years.
If your husband agrees you can keep the house if you buy him out, the mortgage must be refinanced and the loan transferred to you. Once the husband’s name if off the mortgage deed, he is no longer obliged to make payments. If you decide to sell the marital home to pay off the mortgage, you must still deal with who pays the housing expenses until the property is sold. This can be an onerous undertaking depending on the local property market. You must also decide how to divide any gain from the sale. If just one spouse pays the mortgage until the home sells, you should talk about reimbursement.
Talk to an Experienced Baltimore Family Law Attorney About Marital Property Disputes
Divorce is contentious by its very nature. Parties who work together amicably are less likely to split up. Property division is often the most contentious part of a divorce and the family home is usually the most important and expensive asset. Many spouses are unprepared for the challenges a breakup throws at them. They may not consider scenarios such as one party withholding mortgage payments. When parties find common ground and work together it can save a lot of angst and expense.
At Rice, Murtha & Psoras, our Baltimore family law attorney will work diligently on property disputes in Maryland to get you what you deserve and help you rebuild your life. Please contact us for a consultation as soon as possible at (410) 431-0911.