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Am I legally responsible for my half of the mortgage during a separation ?

Hanover, PA |

Can I get in any legal trouble if I decide not to pay anymore?

My soon to be ex wife and I separated last September. We agreed that the best arrangement would be for me to stay with a friend and her to stay in our house until we either found a buyer or she was able to refinance. So far she has drug her feet in the process, and seems perfectly content with letting me pay half of the mortgage while she stays there.

I am afraid if I stop paying half of the mortgage she could try to take me to court for spousal support or something along those lines. I feel like I am being taken advantage of. Also, in York county there is a law that you can't complete the divorce process until the house is sold, so her lack of motivation is putting that on hold as well. Please help!

Attorney Answers 4

  1. Best answer

    There are several complicated issues that you need to discuss with an experienced family law attorney. First, the statute states that the spouse occupying the residence is responsible to pay the mortgage, taxes and other expenses associated with the property. Therefore, you are not obligated under the Divorce Code to make the payment. However, if you discontinue making the payment, this could prompt your wife to file for support. Further, if she doesn't make the payments in a timely fashion, your credit would be damaged. Therefore, you are going to have to decide whether it is worth the risk. If she files for support and does not pay the mortgage payments, you may be able to file a Petition for Special Relief to seek a court order directing her to do so. However, a local attorney will have to advise you as to whether you can expect this type of result from the Judges in your county.

    My response is based solely on the limited information contained in the question. It is not meant to substitute your attorney's advice.

  2. if you are represented by counsel in your divorce proceeding this is a question for them.

    If you decide not to pay it will probably cause you difficultly in your divorce and negatively affect your credit if the house goes into foreclosure. You are responsible for the mortgage until it is paid in full or your name is taken off the mortgage contract.

  3. I agree with and defer to the advice of Attorney Silverman. One additional comment I would add is that you not only are liable for half the mortgage loan payment, but the entire thing (as is your wife). If the payments are not made by someone, the lender will not care who lives in the house, what local rules say, or even what the PA Divorce Code says. I have seen these types of foreclosure cases go on for years and destroy both party's credit because of the complications inherent in unresolved marital battles.

  4. There is no law that the house has to be sold ever as part of a divorce. The house will simply be listed as an asset and the mortgage and any home equity loans will be listed as debts that need to be divided either by agreement or by a court order after a hearing. Unless she has sought and obtained a court order requiring you to pay the mortgage then you have no legal obligation to her to pay the mortgage, but you do still have a legal obligation to the lender if your name is on the mortgage so if you stop paying and she doesn't pay you will ruin your credit and maybe lose a valuable marital asset to foreclosure. However, in theory she owes you half of the fair market rental value for the house since she the one living there and if she wasn't living there it could be rented out. Therefore, later on when property is being divided you can seek reimbursement for all of the payments you have made towards the mortgage for the time you were not living there. On the other hand, she can argue that you would have owed her spousal support and that your payments towards half the mortgage were instead of spousal support. So it is true that if you stop paying half the mortgage she can take you for spousal support. If you do not have children, spousal support is 40% of the difference between your net monthly incomes. Therefore, you should compare what you are paying for half the mortgage to what you would be paying if you were paying spousal support before making a decision to stop paying the mortgage.

    The above answer is intended solely for general informational purposes and does not create an attorney client relationship. You should consult with an experienced attorney regarding all of the details of your particular situation before taking action.

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