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Equitable Distribution Of Home Mortgage Debt Can Be Complicated, But A Divorce Lawyer Can Help


If you have gotten any farther than the Google search stage of planning to divorce, you know that Florida’s equitable distribution laws do not require the court to divide the couple’s marital property evenly in half; instead, the court must divide the marital property in the fairest possible way, and it decides what is fair based on each spouse’s separate assets, earning potential, and necessary expenses.  What is less obvious until you are involved in the divorce process is that equitable distribution also applies to marital debts, as well as marital assets.  You don’t hear about it much, because standup comedians know that they will get more laughs by saying, “My ex-wife got our house and our car” than by saying, “The court only made my ex-wife responsible for 20 percent of our credit card debt.”  Especially if you are young enough that your children are minors, it is likely that your home mortgage is your biggest debt.  If a mortgage-encumbered marital home is a point of contention in your divorce case, contact a Palm Beach County divorce lawyer.

Is Your Mortgage a Marital Debt or a Separate Debt?

The rules for classifying a debt as marital or separate are the same as the rules for classifying assets.  Unless you have a prenup stating otherwise, a debt is marital if either spouse borrowed it during the marriage, regardless of whether one spouse or both are listed as borrowers on the loan agreement.  This means that, if you bought the house or refinanced the mortgage during your marriage, your mortgage is a marital debt.  If you bought the house and took out the mortgage loan before you married your spouse, and your spouse moved in after you got married, the mortgage is your separate debt.

Keep Paying, Refinance, or Sell?

The divorce court can approach marital mortgage debt several ways.  It might order one spouse to stay in the house and keep making mortgage payments; if the case involves alimony or child support, this decision will affect the amounts.  Another option is to refinance the mortgage so that it is only in the name of the spouse that keeps the house; this is not always easy, because it requires you to be able to qualify for a refinance based solely on your income.  Selling a house is never simple, especially in the middle of a divorce, but it is the simplest way to make a mortgage loan disappear.  It can also make your divorce case take longer than usual, but your divorce lawyer can help you avoid unnecessary delays.

Let Us Help You Today

Selling a house or refinancing a loan is a lot of work, even when your ex is not going out of their way to make things difficult for you.  A Boca Raton divorce lawyer can help you disentangle yourself from a marital mortgage loan, whether it is through refinancing the mortgage or selling the house.  Contact Schwartz | White for more information.



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