My spouse and I are divorcing after six years of marriage. The loan which is secured by the house in which my spouse and I have resided is in my spouse’s name, but I have been making the mortgage payments. Will the court require me to continue making the mortgage payments after our divorce is final?
The primary legal issue is whether the property is a marital (community) asset or a separate property asset. A secondary, although still important, legal issue is whether you have a contractual obligation to make payments on the mortgage loan.
Your question states that the mortgage loan is in your spouse's name, which suggests that you do not have a contractual obligation to the lender. It is less clear whether the property secured by the mortgage is your spouse's separate property or whether it is a marital (community) asset. Property purchased before marriage is separate property and generally does not become marital property; however, it is possible to convert (during marriage) separate property to marital (community) property.
The bottom line is that if you have an ownership interest in the property -- and retain that ownership interest after divorce -- you will have to pay your portion of the outstanding debt which is secured by the property, as represented by your percentage of ownership. There are many possible options that might be utilized to accomplish that end, with you continuing to make all or part of the existing mortgage payments only one of those options.
If, on the other hand, you have never had an ownership interest in the property, it is unlikely that you will be required to continue making payments after divorce on a mortgage which is secured by the property. In fact, if you've never had an ownership interest in the property, you may even be entitled to reimbursement for at least a portion of the mortgage payments that you made in the past.
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Dallas, Texas 75380
Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.