Can a Spouse Deliberately Default on a Mortgage During Divorce?

Industry Observer


We have all heard of stories about divorcing couples warring with each other (the movie War of the Roses comes to mind).  When tensions get high, some people will resort to almost anything.  But what about when the 


David Wilkinson - Orange County Divorce Lawyer

Generally, no.  During a divorce it is imperative that each spouse ensure that all debts they are contractually obligated to pay (i.e. being on a loan) are paid timely.  If you discover your spouse is deliberately not paying a loan you are on then you can obtain an order in the Family Court to force the other spouse to make the monthly payments.  Generally, spouses owe a fiduciary duty to the other to act in the community’s best interest.  Thus, if the loan was incurred during the marriage, then the spouse occupying the residence is obligated to pay the mortgage.  The Family Court will not allow a spouse to reside in a family residence and deliberately not pay the mortgage.


Nicole Aeschleman  -  San Jose Family Lawyer 


They can, but that is when a lawyer should go in and fight for orders requiring the party who can pay to continue to make payments.  I have certainly had this happen and we got orders to require the payment.  It doesn’t mean that there is compliance, but then you have to go in and enforce the orders.  Sometimes the end result is that the home has to be sold in order to preserve the asset from foreclosure if there will be continued defaults.


Phoenix Divorce Attorney Scott David Stewart

The primary residential property is often a marriage's largest asset and dealing with it's division can be extremely complicated.  For the most part, any debts (mortgage included) that arose during the marriage will be allocated as community debts and are divided equitably between parties in divorce.  



So the answer is they can, but it's not legal and (with the help of an attorney) the courts will enforce orders to make them pay.


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