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Protecting Your Home When Your Marriage Dissolves

November 2014

A divorce can be one of the most stressful events in life, and much of that stress comes from the uncertainty of the divorce process and how it will affect the marital home.  Knowledge is power; and, it is important to know what your rights are concerning the marital home so you can make informed decisions.

While a divorce is pending, spouses often disagree as to how the mortgage on their home will get paid. Maryland divorce law does not specifically direct which spouse must pay the mortgage during a period of separation. If both spouses are liable for the mortgage, then both have an obligation to make sure it gets paid each month--regardless of each spouse’s income, current living situation, or other expenses.

If either you or your spouse are late on any mortgage payment, or the entire mortgage payment is not paid in full, the mortgage company can exercise any of the remedies available to it provided in the mortgage. Typically, you may receive letters and calls from the mortgage company trying to collect on what is owed. Although you can try to explain your marital situation, the mortgage company is not obligated to make any accommodations. If you are lucky, the mortgage company may be willing to negotiate a payment schedule. If you are not so lucky, then the mortgage company can proceed with attempting to foreclose on the property.

A foreclosure could, but most likely will not, happen because of one late or partial mortgage payment, because what the mortgage company wants is its money, not your house. However, having the possibility of a foreclosure looming in the divorce case can make settlement negotiations difficult. That is why it is important to have your lawyer attempt to reach an agreement with your spouse before, or right after, the separation as to who will be paying the mortgage each month. If an agreement cannot be reached, in certain circumstances, the court can decide how the mortgage will get paid during the separation.

Under Maryland law, there is relief available to parties who are divorcing and have minor children. If the children are living in the family home with one of the now-separated parents, the court can issue an award of “use and possession” to determine which spouse is responsible for payment of the mortgage, real estate taxes, and insurance on the home each month, during the divorce and up to three years after. The “use and possession” law is designed to protect children in the divorce, and allow children to live in a home and environment which is familiar to them while their parents are divorcing, as opposed to having to move out because the mortgage does not get paid since the parents cannot reach an agreement. Before requesting an award of use and possession, the following must be present: (1) the home must be used as the primary residence of a child during the pendency of the divorce; (2) the home must have been the primary residence of the family during the marriage; and (3) the home must be owned or leased by at least one of the parties at the time of the divorce. Prior to awarding use and possession, the court must consider if the minor children’s best interests are met by continuing to live in the family home. The court will also consider the reasons why a spouse wants to remain in the home and what hardships it creates on the spouse not living in the home.

At the time of the final divorce hearing, the court must address what to do with any property acquired during the marriage, including the marital home. Since a home that is titled to both spouses cannot be split down the middle, the court has three options. The first option is to order the transfer of ownership of the house from one spouse to the other spouse, with an agreement from the mortgage company to release the other spouse from the mortgage. The second option is to permit one spouse to buy out the other’s interest in the property. The third option is to order that the home be sold and the proceeds divided equitably. Even if the court orders a home to be sold, there can still be up to three years of post-divorce “use and possession,” assuming the requirements referenced above are met.

If you and your spouse own a home together and you are both on the mortgage, it is important to understand your rights in a divorce case.

If you have any questions about this article or other family law related issues, please contact Ferrier Stillman.


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