Separating might mean you're no longer romantically linked with your partner, but if there's a joint mortgage with both your names on it then you're still financially linked. Fail to keep up with repayments of a joint mortgage, and there could be serious knock-on effects for both of you.
You can take legal action against them for breaching the agreement you both made or seek a court order to force the sale of the property. It's important to consult with a lawyer to understand your legal rights and options and to make the best decisions for your situation.
If you buy a house and don't pay the mortgage payments for any reason, the bank will start proceedings to repossess it. It would be rare for you to see any money returned to you for the sale of the home. Sometimes they auction off for right around the amount you owe.
Usually, foreclosure proceedings begin after 120 days (four consecutive missed mortgage payments) of delinquency on your mortgage, but this isn't always the case. The housing market in which you live, your municipality and your lender may all impact the foreclosure timeline.
If you're three months late on your mortgage payments, you will find that you incur each of the consequences from being two months late: late fees, credit damage, and stern, formal communiqués from your lender, who will almost certainly initiate the pre-foreclosure process.
A nonjudicial mortgage foreclosure can take about 120 days, or four months, to complete. Judicial foreclosures vary depending on your state. In California, this process can take two to three years. If you've fallen behind on your mortgage payments, the threat of foreclosure can become overwhelming.
If both of your names are on the loan, you are both responsible for the payments. Late payments or missed payments will appear on both your credit reports. Once a divorce is finalized, the partner keeping the house transfers the loan to his/her name. To separate a mortgage, he/she will have to refinance.
If there is a hardship, your servicer will explore mortgage assistance options with you. Options might include a repayment plan, loan modification, short sale or Deed-In-Lieu of foreclosure. If a mortgage assistance solution cannot be reached, and the account remains delinquent, your home may be foreclosed on.
The recovery time can also depend on the event. It may take a few months to recover from a hard inquiry, a few months (or years) to recover from a 30-day late payment, and much longer to recover from a 90-day late payment or other major negative mark (such as a foreclosure).
There are two ways to remove a divorced partner from a mortgage: obtaining a release of liability from the lender or refinancing the mortgage. A release from liability is easier, but counts on the lender granting permission.
If you took out a mortgage to buy a house while married, that debt is community property. You're both responsible for it. If you bought a car with money that only you earned while married, the car is community property even though the money used to pay for it was earned by you and not your spouse.
No, a person is not "automatically" entitled to half the equity in real estate just because they purchased the property with another person. The amount of each owner's fair share of the equity may need to be determined by a judge if the two people can't agree on the amounts.
An easy solution is for one of the parties to quitclaim their interest to the other. Often, the price for transfer consideration doesn't even have to be monetary. The party receiving the quitclaim can agree to refinance the property into their own name, getting the party leaving the home completely off the mortgage.
Because California is a community property state, if the couple bought the house while they were married, they both have an ownership stake in it, and neither can compel the other to leave.
If you are married or in a civil partnership
If you are married/in a civil partnership and are not on the mortgage, you can apply for a Matrimonial Homes Rights Notice. This will give you some occupation rights but will not provide you with any ownership rights.
Suppose that “Shawn” and “Julie” take out a mortgage when buying their joint property. But, after a while, Shawn simply refuses to pay his portion. If the mortgage isn't paid, then the bank will foreclose on the home, destroying the estate.
Generally, the legal foreclosure process can't start until you are at least 120 days behind on your mortgage. After that, once your servicer begins the legal process, the amount of time you have until an actual foreclosure sale varies by state. If you are having trouble making your mortgage payments, act quickly.
It is true that in most cases, lenders do not want to foreclose on a home. The process for them is lengthy, and they typically do not receive the full value of the loan. Unfortunately, sometimes lenders really do want to foreclose on a home.
If successful, they may be issued a court order to pay what they owe towards the mortgage. A property partition lawsuit is another legal option you could pursue if your ex isn't paying the mortgage. With a partition action, you can seek the court to force the sale of the property.
If your spouse passes away, but you didn't sign the promissory note or mortgage for the home, federal law clears the way for you to take over the existing mortgage on the inherited property more easily.
Foreclosure is typically triggered after you miss three payments—that is, you go 90 days past due on your mortgage. A final foreclosure order, requiring you to vacate the property, takes at least another 30 days, by which time you'll have missed a total of four payments.
If you don't repay the full amount of the loan by the deadline, you'll be one day delinquent on the day after the due date. Once you're 120 days delinquent, the servicer could start a foreclosure.
This means that if your loan falls under California's anti-deficiency protections, you're not going to owe any additional money to the bank after the foreclosure sale.