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Enforcing The Decree: Real Estate

What happens when after the divorce, the spouse getting the marital residence stops paying the mortgage?

The answer depends on your Divorce Decree. If the Decree says that the other spouse was to hold you harmless on the debt, then you need to (at least) head back to the divorce court for a hearing on contempt.

If the Decree says that the former spouse was to refinance, then you need to also need to (at least) head back to the divorce court for a hearing on contempt.

So long as the mortgage remains in the name of your former spouse and yourself, then you are still responsible for the debt. You will get sued by the mortgage holder along with your former spouse. The judge's signature on a divorce decree means a lot - between the spouses. The creditor was not a party to the divorce. Which means the creditor's rights were not adjusted by the divorce court.

Enforcing the Decree was not the court's responsibility but was your responsibility. If the Decree says that something was to be done by a certain time and it was not, then you must go back to court to get done whatever was to be done - refinancing or sale.

If you have waited till a foreclosure suit was filed by the mortgage holder, do not wait till the mortgage holder gets a judgment. You have a war on two fronts. You need to defend the foreclosure and you need to get a contempt citation filed in the divorce court.

Bottom line: do not sit on your rights and get a lawyer.

If you have this sort of problem and need to consult with an Indiana lawyer, I am available for cases thought most of eastern and central Indiana.

Full post as published by Sam Hasler's Indiana Divorce & Family Law Blog on June 27, 2008 (boomark / email).