Divorced, but still on Note of Home

[miabella28]

I have been divorced now for over 5 years. At the time of the divorce, neither the ex-husband nor I had the credit to refinance homes to take our names off, so we decided to give each other time and remained on the note of each other's homes. Our agreement was that if any party becomes 30 days late on a mortgage payment, then whomever was late agreed that the other party would have rights to the home.

My Ex-husband is currently 3 months behind on mortgage payments on his home. However, it creates a sticky situation because of the way we share custody of our girls.

He has them during the school year and I have them for all their school breaks and for summer. He is not able to refinance for a conventional loan to get my name off the note (and property as I refuse to deed it over to him as I am still liable). I sent him a letter letting him know that he is currently in default with the bank and with me and that he basically has two options, to refinance and get my name off (which he would have to get a private lender) or I would give him $1,000 to sign the deed over to me so that I can sell the home (most likely by short sale), as to which the $1,000 will accommodate for moving expenses, such as getting into an apartment or renting a home.

Could I please get some advice how this may be handled in court OR how I should approach it? I am a full-time student getting ready to commission into the US Army as an officer and it is mandatory that all my financial situations be taken care of (especially in a timely manner).

My concern is the fact that their dad has them for the school year and neither one of us pay child support because of the way we have the schedule. How can I sufficiently get this done? He currently has no job and is not eligible for unemployment. Him and his fiance both live in the home and she as well does not work.

Please help. I was informed that by taking him to court I could be the one the judge holds responsible since I'm still on the note and do not pay child support for the time their dad has them.

Thank you for any advice you can give.

[Attorney Allison Belcher]

You could take him back to court by doing a Motion for Contempt for any condition of the divorce that he has not abided by. You could do a Motion for enforcement of the final judgment to have the court order him to pay the mortgage. However, if he is not making money, any order in family court can make him pay. They can give the house to you, if that was a condition and then you could do a short sale. The Family court system cannot force a bank or private lender to refinance the house in his name.

Yes, if you will be making more money, It very well is possible that he may file a supplemental petition to modify and ask for child support.