Question #161:I live in New York State and after seven years of marriage I am now seriously contemplating divorce. I understand that I can file for a legal separation and, should things improve with my estranged spouse, we can get back together without remarrying. We currently jointly own (finance) a home and I am unclear as to my financial obligations (my name is on the mortgage) during the period of separation. If I do not make payments during the period we are not together, is that considered abandonment? Do I lose any financial rights to my home? Please advise. Many thanks.

Filing for legal separation will not impact your obligation to continue to pay on the mortgage. The bank will not let you off the mortgage simply because you are now separated. If you or your wife fail to make the payments when due, the Bank will foreclose on the property. If your wife continues to pay the mortgage without your participation in order to avoid default, and she subsequently files for divorce, she will ask the court to grant her a larger portion of the marital estate to cover the expense she extended on your behalf.
The best thing to do is to enter into a mediated Separation Agreement in which the payment of the mortgage will be provided for between both of you and you will not be in default and lose your marital equity in the house.

If you are living in the New York City metropolitan area , please call me at 212-370-1660 to arrange for a meeting to discuss the matter at greater length.

Leonard M. Weiner, Esq./Divorce Solutions

Question #132: I am in Wisconsin. I recently got divorced and my ex-husband is taking over the house that we purchased together at the end of last year. It is in the divorce papers that he is getting the house, however there is nothing that states he has to refinance by a certain date to have my name removed from the mortgage. It seems as though that he just keeps putting it off and will not refinance, and he has been asking me for money since my name is still on the mortgage even though I have not been living there for over 6 months now. What are my legal rights? Is there anything I can do to force him to refinance the house or any type of paperwork that can be completed stating that I am no longer financially responsible?

This problem should have been addressed at the time when you agreed to deed over to your spouse your interest in the house. Not just marital assets must be divided at the time of separation but also the marital debts, of which the mortgage is one. Your attorney should have addressed this issue when you originally agreed to deed over your interest in the house. At this point you remain obligated on the mortgage and the only way that you can have your husband assume the entire mortgage is to go back into court and address the issue with the judge.
I cannot overemphasize the necessity to have proper, legal counsel experienced in matrimonial matters in the jurisdiction in which you file so that such matters will not come back to haunt you after the papers have been filed. Once again, I must reiterate that divorce is too serious a matter to leave to self-help.

Leonard M. Weiner, Esq./Divorce Solutions

Question #130:We are divorcing after 20 years. He is unemployed but looking. We have enough money and he wants to buy me out of my portion of the house, Since he is unemployed, he won’t qualify for his own financing. I don’t want to force him on the street. He wants me to leave everything as is and to file a quit claim deed. My name is still on the mortgage. If he pays me off, and I file quit claim deed on our house, In the event that he is late on a payment and begins to ruin my credit rating can I still force him to sell or do anything legally that would get my name off the mortgage?

As long as you remain on the mortgage you’ll be liable for the payments that are due
even if you quitclaim your interest to your spouse. Before transferring your interest in the property you must arrange with the bank to be removed from the mortgage. He could theoretically take on a second mortgage which would encumber the property even further and drain out any equity that remains in it.
Do not allow yourself to be exposed to this potential, financial threat which could possibly arise long after the divorce papers are filed.
I strongly suggest that you retain an experienced, lawyer- mediator in this matter to help you both work out a solution that will protect your interests as well as provide you both with a solution to your problem.

If you located in the New York City metropolitan area please call late at 212-370-1660 to arrange to me to discuss this matter had greater length.

Leonard M. Weiner, Esq./Divorce Solutions