It is not uncommon for one party to remain in the former marital residence after the divorce. Usually, ths is accomplshed after buy-out of the other party’s share of the equity, the refinancing of the existing mortgage to remove the bought out party from liability for same and the preparation of a new deed placing the home in the sole name of the “new” owner. This is the preferred method of transferring the home to one party.
However, this preferred method cannot always be accomplished. Often this is due to the inability of the party retaining the home to refinance the mortgage due to lack of an empoloyment or income history. As an aside, The Durst Firm works with experts in divorce lending to assist our client’s in obtaining finanacing. It’s not gauranteed, but our connections can be a useful resource. In these situations, there is often a defrered obligation to refiance and buy-out the other spouse. But what happens if this obligation goes unfulfilled?
The first step in avoiding a situation where the spouse keeing the home fails to refinance or keep current on the mortgage is proper drafting of the Marital Settlement Agreement. In the agreements I draft when the adverse party is keeping the house, I build in timelines and self-executing provisions to facilitate the sale. Unfortunatley, not all agreements contain such langauge.
Thankfully, the November 23, 2015 unpublished decision on the NJ case of L.H. v. D.H. authored by Judge Lawrence Jones offers guidance on how to resolve this situation.
Judge Jones recognized the negative imapct such a situation can have on the credit rating of the spouse who is not in the home. Judge Jones stated, “It is vital to consider teh growing econokic significance of credit reports…in people’s lives.” He further said that “this court takes judicial notice, as a matter of indisuputable common knowledge, that a positive credit rating…is one o fhte most valuable and important assets a party may presently possess.”
With this keen understanding, Judge Jones ordered the sale of the former marital residnce post-divorce after the retaining party: (1) never tried to refinance the mortgage as required, (2) was occaisionally late in making mortgage payments, and (3) these factors negatively impacted the credir score of the former spouse.
Remedies avaialble to the court, per Judge Jones, including forcing the party to sell the home, appoint the non-offending party as attorney-in-fact over the other party to market and sell the house, and to remove the party in violation from the home.
