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Moved Out of the House - Continue Paying Mortgage?

Discussion in 'Family Law Forum' started by Travis, 2 May 2014.

  1. Travis

    Travis Member

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    I have separated from my wife. I was the one that moved out but the house is in joint names. She refuses to let me buy her out or put the house on the market. I am still currently paying the mortgage as well as rent. Do I have to continue paying the mortgage even if I am no longer living in the house even if the house is in joint names?
     
  2. rebeccag

    rebeccag Well-Known Member

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    G'day Travis,
    How long have you and your wife been separated? You may want to apply for a divorce after you’ve been separated 12 months and get a property settlement. The Family Law Courts site has some good information about property and money matters after separation and divorce (it also has good information on children and parenting arrangements).

    In terms of property settlement, there are options for the process:
    If you agree about property and money, or
    If you don’t agree about property and money.

    If you can’t agree and have to get the family court to decide, one of the things the court will consider is “looking at the direct financial contributions by each party to the marriage such as wage and salary earnings”. So you would be able to highlight you additional contributions and might put forward that you’re entitled to more at the property settlement because you’re contributed more to the mortgage. You could areee to this, or if your wife won’t agree, then you’d have to submit that to the court.

    Have you raised the issue with your wife to come to an agreement that you won’t pay for the mortgage as you’re already paying for rent and whether she can realistically cover the full mortgage payments without your contribution? Perhaps you applying for divorce and getting property settlement going will help her to realise that she needs to make a decision about dividing your assets.
     
  3. Tim W

    Tim W Lawyer

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    The short answer is "probably, yes".

    The long and detailed answer is:
    1. I pretty much agree with rebeccag above.

    2. Note that the title documents and the loan documents are separate things.
      The borrower(s) and the titleholder(s) might be different.

    3. In this question, you are mostly concerned with the loan.

    4. You (that is, the borrower(s)) have contracted with the bank (or whoever) to pay back, over time, the amount you have borrowed (and assorted other costs and fees, including, of course, interest).

      In return, you have granted your bank (or whatever) certain rights over the home
      in the event that you don't. You often hear this called "having a security".
      This particular security is called a "mortgage" (yes, there are other kinds of securities,
      that have other names, but that's not relevant right here right now).

    5. Ignore, for a minute, whose name(s) are on the title documents, and ask yourself - who is the borrower?
      For example, it might be just you. Or, it might be you and your estranged wife jointly. Or, there may be other people involved (such as in-laws).
      Get your loan documents out and have a look.

    6. It's the borrower(s) who has (or have) the contractual obligation to pay back the loan.
      And that's the case pretty much regardless of who lives where, and pretty much regardless whose names are on the title documents.

    7. So, estranged or not, living in the house or not, and no matter how much you might resent it,
      and no matter how financially difficult it is, if you are (one of) the borrower(s), then basically,
      yes, you have to keep paying.
    Other things to consider:
    • Talk to the bank (or whatever) and let them know what's happening.
      You are hardly the first person to be in this boat, and as a general thing, banks etc
      would much rather re-arrange things a bit than have to deal with a home loan in default.

    • Keep an eye on your non-mortgage personal debt (credit cards etc).
      Try and keep any consumer loans (eg car) under control.
      And talk to your credit providers early if things get tight.
      The last thing you need is personal bankruptcy making things worse.

    • Work out if there are any others with interests in the house
      (such as if it is also security on a business loan, or if there is an unregistered interest,
      such as if parents put money into it to help you out).

    • Seek advice from a lawyer who knows their way around the Family Law jurisdiction.
      In Family Law, working out what a fair share of an asset is can be more complex
      than bald money and mathematical shares expressed in dollars.
     
    John R likes this.

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