"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:
The court order requires that the man produce a monthly record of each payment (cancelled check or payment record from online banking).
The court order allows her access to the account to verify that payments are current.
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.
;)
;)
