Real Estate Attorney with THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY


Chained to your home and can't get a divorce?  You are not alone!  A major problem with divorcing couples is that they cannot sell the marital home.  They think they are forced to stay in a difficult relationship or marriage.  Today's economic climate is terribly impacting couples (or former significant others) from terminating their relationships.  Divorce attorneys call these people "roommate marriages".

There is no difference between roommate marriages and real marriages that stay married.  But let me digress to give the full view of the problem.

In recent years I have seen people come to me that got married and then split.  But in the lust for the relationship they bought a home together, sometimes even before getting married.  In those years past, with increasing values, we simply did what is legally called a "partition" of the property and it was sold under a court order, always paying off the mortgage and netting the parties some nice cash.

Now the economic climate is different.  The homes are perpetually underwater in debt because of declining values.  This is the classic "upside down" scenario.

The net effect is that the partition of the property becomes more difficult or even impossible without the intervention of a short sale concept.  Further, married couples feel compelled to be locked together financially because of the home - it is like the REMAX television advertisement of the house hanging over the family wherever they stand.

Divorce attorneys and their clients should realize that there are solutions for dealing the upside down real estate homes and investments that afford an end to the marriage. 

Divorce clients and attorneys listen up!  An experienced Realtor coupled with a short sale experienced attorney, working in conjunction with the parties' divorce lawyers can typically find light at the end of the tunnel for these situations.  A good portion of hardships involve divorce - as in, "I got divorced and cannot afford the home anymore."  There is no economic difference to "I got divorced" and "I am getting divorced."  There are merely explanations to the lender.  The end effect is the same and the hardship is the same.  Thus the fact that you (or your client) is in the midst of a divorce that involves a problem property should not deter the divorce going forward nor should it deter the resolution of the disposition of the sale of the marital home.

For an explanation on short sales, see the articles at SHORT SALE TRILOGY, I Can't Pay My Mortgage, and some articles by Dan Forbes and another.

Short sales allow the borrower (the divorcing couple) to sell the home that is worth less than the total of the mortgages owed on the home.  It is a difficult process but it can be navigated with competent professional help.  Timing on short sales is governed by when your Realtor gets a contract, but getting a contract is merely a determination of the price reaching the sensitive area where the buyers get interested enough to make an offer.  That determines value - where a willing buyer and seller agree upon a price.  "Value" is a subjective item - but it is all theory unless you have someone willing to pay and WHAT they are willing to pay is the true value at that point in time.  It may be worth more, but not at that moment in time.

So a short sale is necessary when "in that moment of time", being in this depressed real estate market, the value is less than the mortgage indebtedness.

Lenders accept short sales because of "economic reality".  So don't stay married because you are also married to your house.  Look at the options!!!


Comments (12)

Doris Freeman
Zach Taylor Real Estate - Gallatin, TN
Broker/Agent, 615-961-7799
Godd information, this market has really brought about new problems for everyone
Mar 26, 2008 03:17 PM

Dear Attorney Zaretsky,

Finally!  Some help for my clients who want to get a divorce in today's trying times... What a

great idea for couples who are "stuck" in a loveless, sexless marriage, and also "stuck" with a

marital home they can't sell.  In Palm Beach County, Florida, where my office is and most of my clients

live, housing prices have dropped about 30% over the last two years.  Short selling is an option too

many divorcing couples overlook.  I will direct my clients to your site for all the great information you

have available.  My divorce law web site at is being updated thanks for you!

Co-counseling to help my divorcing clients would be just another service I am happy to offer to get them

unstuck from both the spouse and the marital home.  Thanks for the great advice!  Robin Roshkind,

Esquire for ROBIN ROSHKIND, P.A. 561-835-9091.  



Mar 27, 2008 09:34 AM
Gene Allen
Fathom Realty - Cary, NC
Realty Consultant for Cary Real Estate
I am getting into a situation like that.  The husband however is going do deed his portion of the house over to his wife.
Mar 27, 2008 11:42 AM

This is great but what about the person that has followed the rules all their life, has a great credit rating and then won't be able to get another home for 2-3 years because of the short sale.  My husband did a quit claim deed and the people he is working with say he will be able to buy a forclosed home, while I am stuck waiting for the marital home to sell and hope I can find a place to live after.  Is there any way to get into another home?  We have pets so renting would be hard. I worked with someone that did a short sale, filed for bankruptcy, got divorced within a 3 month period and 6 months later bought a house with her son.  How do these people do it?

Aug 20, 2009 12:44 PM
Richard Zaretsky
THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL
Florida Real Estate Attorney


How they do it is simple - there are no rules on this area of the law ... because it really is not an area of the law - it is an area of credit availability.  You gave far too little information on your situation to be able to help you - but if your husband (ex) is on the note secured by the mortgage, then no quit claim deed will release him from that obligation - but he probably has it together with you.  In effect you have a "joint and several" liability = meaning you both are 100% liable on the note.

Aug 24, 2009 02:31 PM
Bruce Brown
PrimeLending - Kansas City, MO
Branch Manager/Senior Loan Officer/CMPS

Trying to do some research on this issue for a couple going through divorce. They have a first and second mortgage on a home that is about 30% upside down. The wife has moved out of the home and could not afford the home if she stayed. The husband wants to remain in the home but does not want to absorb 100% of the loss in value on the house. There are no other real assets to split so they are being told the only thing that can be done is either the husband accept all the loss on the house and continue living there or the judge requires them to sell which would obviously be short and hurt his credit not to mention letting the spouse off the hook for any portion of the loss.

They have contacted the mortgage company to try and facilitiate a write down of the value of the home to avoid a short sale or forced foreclosure but can't get anywhere because the husband is not in default nor having financial difficulty making payments.

If he lets the house go the bank takes a loss, if he sells short the bank takes a loss, and if they write down the balance they take a loss but the write down seems the best of the options for the bank. The mortgage does not qualify for a refinance because of how far upside down it is and they don't qualify under Making Home Affordable because the mortgage isn't held by Fannie or Freddie.

What can this guy do, if anything?

Dec 07, 2009 06:59 AM
Richard Zaretsky
THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL
Florida Real Estate Attorney

Pulaski -

First wrong assumption - You are doomed to failure if you think the bank is going to do anything logical.  Think "alogic".

Second wrong assumption - The court does not have the power to relieve the former wife of her liability on the loan.  If she signed the Note, then she is liable on the Note and her credit rides with the performance of the Note (ie: late, short sale, foreclosure).

Third wrong assumption - The lenders are presently not writing down prinicpal amounts.  From my knowledge of the Florida market, this is an absolute statement for now.  Other states may have had some success.  A sign of this failure is that the government has official called the Hope for Homeowners program "dead".

My shoot fromt he hip opinion - This guy apparently wants the house to keep.  At 30% upside down he should consider himself lucky and realize that in the long term, he will be ok.  If he thinks the market is going to tank further or stay flat for 7 years, then she should cut a deal to pay some portion of the deficiency on a short sale and just get out.


Dec 08, 2009 01:12 PM
Brian Anderson
Peachtree SEO - Peachtree City, GA
SEO and Social Media Marketin

Great post - this is one I get questions about regularly.

Richard, have you seen banks offer one of the divorcing couples a loan assumption option?  I had this come up last week. 

Couple had divorced a few years ago - both on the note and deed.  Former marital home is under water.  The wife has a decent job, but due to a period of time when she was out of work her credit and the former husbands are bad. 

The wife is asking her mortgage servicer - Wells Fargo, to let her "assume" the loan and take full obligation for the note in her name.  The ex-husband is obviously happy and is willing to do whatever she needs to get his name off of the note and to deed it to her.

Any thoughts on this one?


Jan 22, 2010 11:07 AM
Richard Zaretsky
THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL
Florida Real Estate Attorney


Our experience on divorced couples and having one party "assume" the loan and the other party be released is, since the financial crisis began,a big ZERO.

Prior to the current financial crisis the lenders would usually allow a modification and a release of the non-owning party priovided there was financial capacity to the remaining borrower and the property had the proper Loan to Values.  Since the later is now almost never the case, there are no more such transactions.  Add to that the issue of financial capacity of the remaining borrower and you can see the compounded problem.

Jan 28, 2010 02:50 AM
Darrell Kirby

Thanks for the information. I am going through this now. I stay inmy home with the wife and tep daughter because I have not had to pay. My house is half the value I purchased it for in 2004 so I am short selling. I have had an agent since December 2009 who is not doing a good job and does not communicate. Is there a recommended attorney or agent for short sales in Michigan? Thanks for any help.

Jul 18, 2010 06:18 AM

I will eventually be divorcing my husband and we both live in FL.  We have jointly been seeking bankruptcy options (he qualifies for Chap 7, but seeing if we can jointly file Chap 7).  I am and have been the breadwinner for most of our marriage.  He wants the house  The house is underwater and I have stopped all mortgage payments at this time based on my attorney's recommendation.  If he stays current on the mortgage (not sure yet how he can do this), how can I get my name off the deed/mortgage loan?  I was told it either has to be short sale or foreclosure.  Is there anyway I can proceed with starting this process alone? 


Another side note is that his elderly parents live in the downstairs duplex portion of the house and have been current on their rent.  They are not willing to buy the house. 

Thank you for your time.

Feb 09, 2013 05:52 AM
Richard Zaretsky
THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL
Florida Real Estate Attorney

Sheila - #11

Simple answer is you can only get your name off of the OBLIGATION of the promissory note by paying it off, settling it for an amount less than its full amount, or deeding the property back to the lender coupled with a full release of the obligation.

Paying it off for less than the full amount of the obligation includes a short sale.

Foreclosure does not relieve you of the financial obligation.

I don't know the benefit of not paying on the mortgage might be to you, unless you believe ruining your credit is a benefit.

Refinancing is also an option, and your husband can see if he will qualify for a HARP refinance loan.

You and your husband will need to cooperate in any route you chose to take.  If you are on the same page on this then you can contact my office or your own real estate attorney for assistance.

Good luck and I hope it all works out with as little paid as possible.

Feb 18, 2013 05:25 AM