The home is in both our names and is being forclosed on. If we lose it I feel she should be liable also. But if were divorced I'll try to save the home and have her removed from the loan.
The home is considered part of the marital estate, Go talk to a local divorce attorney who will explain how the home will be handled in yur divorce case. If she is on the mortgage then yes she will also be liable in the foreclosure AND the divorce case.
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Is she agreeable with your plan? If the house is "upside down" and she knows it's going to be foreclosed upon (and, thus, she will be liable for the loss along with you), perhaps this is something she'd be willing to give you in the divorce? Speak with a local family law attorney about filing for the divorce. It is not uncommon these days to have a foreclosed home to deal with during dissolution of marriage proceedings.
This response is for general purposes only and does not establish an attorney-client relationship. You should contact an attorney to fully discuss your issues.
Divorce, particularly with real estate issues, can be complicated from initial pleading all the way through to the final judgment. Even if your divorce is uncontested, considering the facts stated above, you should consult with a local attorney who can handle your uncontested divorce. Many Jacksonville area attorneys offer flat rate billing for uncontested divorce matters.
To accomplish your stated goal, the marital settlement agreement and/or consent final judgment should provide a specific time period following entry of the divorce judgment for you to refinance the marital home. If you are able to refinance the home, the consent judgment should also specify that Wife shall execute any documents necessary to transfer all ownership of her interest in the martial home to you. If the home has negative equity, it should be a good deal for the her.
Since it may be difficult to refinance a home in foreclosure, the marital settlement agreement should also contain provisions equitably dividing any mortgage foreclosure deficiency liability in the event you're unable to refinance the marital home.
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