This is a difficult situation for you. Many who anticipate it and define the obligation in the decree of divorce are not successful due to the nationwide decrease in housing values. Even if your ex is obligated under the decree of divorce, impossibility is a valid defense.
Your mortgage creditor will be no help. Only paying off the mortgage or bankruptcy will discharge your obligation on that note. Your ex will be unable to pay off the mortgage unless he is highly creditworthy and the value of the house substantially exceeds the payoff balance. If those factors are present, and your decree of divorce requires refinancing by your ex, that obligation is a court order enforceable through the contempt powers of the court.
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You should first look at your separation agreement or judgment from the court and see how long he was given to get this accomplished. The typical way to get someone off a mortgage is to refinance. As my colleague said that can be a difficult task in this economy, but he should be able to show you that he has at least tried. If you think he has the ability to refinance and just won't then you may consider filing a complaint for contempt.
If a financial institution remortgages the property and he assumes liability.
There is no other way that I know of .
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This happens more often than you would think. Usually a well-written agreement will specify a firm date when the spouse who gets the marital home has to rerfinance or sell the home. This is the only way to get you off the mortgage. The mortgage lender is not a party to your divorce and has no obligation to change the loan terms. You first need to have your agreement reviewed by a divorce attorney to see if your ex was supposed to refinance or sell by a certain date. If so, and he ignored that, you may ask the court to order the home sold. If your agreement does not say that, your lawyer will have to file some sort of action to force your ex to sell the house or to file in civil court on the basis that he is harming your credit. Good luck
This answer does not consitute legal advice and does not create an attorney-client relationship. The answer is based only on the facts presented. This answer is basd only on Massachusetts law.
It sounds as though your ex-husband has not complied with the terms of your judgment of divorce. You don't mention when he was required to refinance the house but, assuming he is obligated to do so and has not, you will need to file a Complaint for Contempt in court in order to obtain his compliance. If he is in contempt, you may be awarded your attorney's fees and other costs. If he cannot refinance, you may use the opportunity to craft some sort of creative solution to this problem that benefits you both.
Christopher Vaughn-Martel is a Massachusetts lawyer with the firm of Vaughn-Martel Law in Boston, Massachusetts. All answers are based on Massachusetts law and the limited facts presented by the questioner. All answers are provided to the general public for educational purposes only and no attorney-client relationship is formed by providing an answer to a question. To schedule a consultation with a lawyer, and obtain advice and review of your specific legal issue, please call us today at 617-357-4898 or visit us at www.vaughnmartel.com.
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