What Happens if My Former Spouse Stops Making the Mortgage Payments? Florida Family Law Issue


When spouses separate and the Florida divorce is final, one party usually takes full ownership of the marital home. For one party to have full legal title to the, now, former marital home, the other party must sign a quit claim deed transferring his or her interest in the property to the other party.

Based in Jacksonville, Florida, the law firm of Wood, Atter & Wolf, P.A. is experienced in disputes and issues regarding the marital home and the failure to pay the mortgage payment.  Certainly, any issue regarding the former marital home and the stability of the living environment should be addressed in a timely manner through legal representation when necessary.

If the spouse living in the former marital home is not the only spouse listed on the note with the lender (bank), then that possessing party must either refinance the note in order to remove the other spouse or obtain a new loan solely in the possessing party’s name. Usually, the parties will agree that whoever remains in the Florida marital home will refinance the home but the court can also order a party to do so or, at least, attempt to do so. It is ultimately the decision of the lender to agree to refinance the note and mortgage and remove one of the parties from the original agreement. Often, the lender will not agree to refinance the home; therefore the spouse who was awarded the home must obtain a new loan to pay off the existing loan. In order for a party to obtain a new loan, the party must qualify for such a loan according to each lender’s terms and requirements. Usually when a couple purchases a Florida home, the amount of the note and mortgage is based on individual’s income. Being recently divorced and not having that second income may make it difficult to obtain a new loan for the same house because the debt to income ratio that lenders look at and rely on has now changed.

There are times when the party awarded the home is not able to refinance or obtain a new loan. If this happens and then the mortgage payments are not made, the lender will seek to foreclose on the property. When both parties are still listed on the note with the lender, both parties are liable to the lender for the remaining amount on the note. Even though one party executes a Florida quit claim deed giving his or her interest in the former marital home to the other spouse, both spouses owe the remaining amount of the loan to the lender and both parties will be included in the foreclosure action. This means that if a judgment is entered in favor of the lender, both spouses will have the foreclosure on their record and a judgment against them. Having a judgment or a foreclosure on one’s record can drastically affect one’s ability to buy another home or receive financing for other things such as a vehicle, credit card or personal loan. Higher interest rates are also a side effect of having a foreclosure or monetary judgment on one’s credit record.

All too often, former spouses are summoned to court regarding a foreclosure for a house they have not lived in for years because the other spouse failed to make the monthly payments. That same former spouse will inform the court that he or she signed a quit claim deed to the other spouse as required in their final judgment for divorce. The court will not hear this argument because both parties are liable to the lender so long as both of their names are on the note and mortgage. This is why it is so important to have an experienced family law attorney in the divorce case to insure that safeguards are put into place within the divorce case to protect one’s self from the potential financial downfall of a foreclosure. The family law firm of Wood, Atter & Wolf, P.A. have that experience and strive to protect their clients from such financial misfortune.

If you need legal advice and representation regarding a Florida family law matter, contact Wood, Atter & Wolf, P.A. by phone at (904) 355-8888 or online at www.woodatter.com for a consultation. At Wood, Atter & Wolf, P.A., you attorney is  On Your Side – At Your Side.

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