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Is My Ex Paying the Mortgage?

By
Real Estate Broker/Owner with Rogliano Real Estate Group

"How could this happen? My four children and I are going to be homeless!" This was a desperate call I received a few days before the holidays. Unfortunately, it wasn't the first time I had taken a call of this nature.

What options does a woman in this situation have? The final settlement of her divorce had resulted in a court order directing her former spouse to make the monthly mortgage payments. However, her name was not on the note.

That sounds fine until either he can't or decides not to make the payments. The mortgage becomes delinquent and headed for foreclosure. With current privacy laws and because her name is not on the note, if a clear course of action hasn't been defined through a court order, then she's in the dark and completely vulnerable.

In a recent class I took to become a Certified Real Estate Divorce Specialist, I asked the attorney teaching the class what action should be taken to avoid this scenario.

His response was clear. There are three options, one of which needs to be clearly defined in the court order:

  1. The court order requires that the man produce a monthly record of each payment (cancelled check or payment record from online banking).  
  2. The court order allows her access to the account to verify that payments are current.
  3. The court order requires that the man pay her the amount due each month, and then she actually makes the payments.

Of course, the court can't control the actions of the lender, who is a third party to the divorce and is not bound by court orders. Therefore, if the second option is exercised, it is wise to confirm that the lender will allow her access to the account prior to the order. If not, then instruct the attorney to proceed with one of the other choices.

Through clear definition in the court order, she can monitor the situation and become proactive before it gets beyond repair and the foreclosure process begins.

And yes, individuals do defy court orders and refuse to pay. Unfortunately, if this occurs, the only remedy is to seek contempt charges which won't prevent the lender from foreclosing in most cases.

John Walters
Frank Rubi Real Estate - Slidell, LA
Licensed in Louisiana
I for the life of me can't understand why he would want to put his childre in this situation.
Jan 31, 2008 08:38 AM
Joan Rogliano
Rogliano Real Estate Group - Denver, CO

John,

Unfortunately, this happens quite frequently.  Whatever the reasons for non-payment are, it is a situation where we need to protect our clients to ensure that the security of their home is unquestionable.

Jan 31, 2008 10:11 AM
Mike Jones
SUNSTREET MORTGAGE, LLC (BK-0907366, NMLS 145171) - Tucson, AZ
Mike Jones NMLS 223495

Joan,

Thanks for posting this.  I've featured you in this week's Mortgage Pro Week In Review--1/28/2008 Through 2/03/2008

Mike in Tucson

Feb 04, 2008 09:12 AM
Lola Audu
Lola Audu~Audu Real Estate~Grand Rapids, MI Real Estate - Grand Rapids, MI
Audu Real Estate~Grand Rapids, MI ~Welcome Home!
Wow, this is truly an unfortunate situation.  Many don't realise how this can occur after a divorce.  If a woman has no outside means of support, there are probably very limited options open to her.
Feb 04, 2008 11:46 AM
Don Draughn - Mortgage Professional
High Point, NC
Great info Joan.  I can't tell you how many times I have taken calls like this.
Feb 05, 2008 12:11 AM
Joyce Windschitl Hercules
Prime Mortgage - Chanhassen, MN
MN, FL, WI & CO Mortgage Consultant

Joan -

I work with several divorce attorneys.  I have not heard of the Certified Reak Estate Divorce Specialist.  Is this something just in Colorado?

Feb 05, 2008 12:36 AM
Joan Rogliano
Rogliano Real Estate Group - Denver, CO

Mike,

Thank you for sharing this information on Mortgage Pro Week in Review!

Feb 06, 2008 03:33 AM
Joan Rogliano
Rogliano Real Estate Group - Denver, CO

Lola,

In many situations, the woman does have very few options.  Our goal at WFG is to increase the amount of options while educating individuals in these circumstances so they can make the best possible choices to avoid this situation from even occuring. 

Feb 06, 2008 03:34 AM
Joan Rogliano
Rogliano Real Estate Group - Denver, CO

Don - Thank You!

Joyce - Certified Real Estate Divorce Specialist is a new certification program which is available nationwide.  I was in the first certification class which was held in January.  There is also a new Certified Luxury Home Marketing Specialist class I attended just this week.  I am currently one of three individuals in the country that has both of these designations.

Feb 06, 2008 03:37 AM
Rick Kellow
Cherry Creek Mortgage - West Bend, WI
FHA & Reverse Mortgage Expert
Great post Joan... I work with this all the time... to many brokers walk away from these loans... helping these customers can be very profitable 
Feb 06, 2008 03:39 AM
Joan Rogliano
Rogliano Real Estate Group - Denver, CO

Rick,

Thank you for your kind words. 

Please visit again soon, I will be posting new articles as quickly as I can write them based on ideas that were presented during my recent certification course.

Feb 08, 2008 09:23 AM
Anonymous
jeremy
i would aways tell everybody going through a divorce to speak with CDFA (certified divorce financial analyst) that situation probably would not have happened. it is very sad that it happens put it happens all of the time
May 17, 2008 12:55 PM
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