What If One Spouse Wants to Sell the House After the Divorce and the Other Doesn’t?

Q: My husband left three years ago and is continuing to pay the mortgage. I want to sell [the house] so I can move, but he doesn’t. He doesn’t have enough money to buy me out or the credit to refinance it on his own. What do I do? ~ Brenda

Brenda, we are sorry that you have found yourself in this position. It is not uncommon in a divorce for one spouse to want to keep the house. If Spouse A agrees to let Spouse B keep the house, then the easiest thing to do is for Spouse B to buy out Spouse A. This can usually be done by Spouse B refinancing the home and pulling out enough equity during the refinance to buy out Spouse A. (Here are more ways how one spouse can keep the house after a divorce.)

However, the real world doesn’t often work so smoothly. As in your case, many single ex-spouses cannot afford to make the mortgage payments on their own. If they don’t have sufficient credit and income, they will not be able to qualify for a refinance, which means they can’t buy out their ex-spouse and take that spouse off the mortgage and the property deed.

Brenda, you may be tempted to let things stay as they are since your spouse is paying your mortgage. That would be a bad idea. If your name is on the mortgage of the property, then it will likely be very difficult for you to get approved for a new mortgage if you wanted to buy another home. Your mortgage responsibilities will also be reflected on your credit report, which could make it difficult for you to be approved for future loans, such as a car loan. Additionally, if your spouse were to stop making mortgage payments on the house, your credit would be damaged along with his!

Finally, if the house is considered marital property, then you are likely entitled to a portion of the equity. That’s money that can help you start over or to use as a down payment on your next home.

In your case, it sounds like you and your husband are still legally married. My first bit of advice would be to initiate divorce proceedings if you are ready to dissolve your marriage so that you can divide your estate. You can give your husband the chance to buy you out of your share of the house during your divorce negotiations. (If you don’t have a lot of money, then I would advise considering divorce mediation).) If your husband cannot buy you out, then you can ask a family law judge to compel a sale. This will take some time and may require you to hire an attorney to help you with the motion, but if you can get your share of the home’s equity back, then it will be money well spent!

It is often best to consult a divorce attorney in your state so that you can understand the state laws that pertain to your case. If you are worried about the cost of an attorney, a great place to get more information about divorce is to attend a Second Saturday Divorce Workshop in your area, which often features advice and presentations by divorce attorneys, financial advisors, and other divorce experts.

Comments

  1. my husband left me in DEC.and. moved out of our house. he.payed mortgage for Jan and Feb couldn’t pay any more i,ve been paying the mortgage since then… we put house up for sale two weeks ago…since he walked out on me and hasn’t paid for the mortgage ..how long before its considered abandonment and what can i do can i keep the house if hes not paying mortgage and he left me..

    • I’m not an attorney and I’m not familiar with the laws of your state, and so I have no idea what constitutes abandonment, nor whether it has anything to do with anything legally. If you want to keep the house you’ll need to pay the mortgage, or you’ll lose it, so that’s the first thing to do. And then you’ll need to figure out how to pay him for his share of the equity in the home, if there is any.

  2. Husband filed for divorce, we live in the home I purchased before marriage. His name is not on the house, will I have to pay him anything ?

  3. We have a mortgage free home, have been married for 48 yrs, and plan on divorcing. My husband is retired and has VA benefits that allow him to purchase a house with no down payment. I have a small social income and work part time. Can I ask for our house, by buying him out?

    • If you have the means to buy him out of the house, and he doesn’t object, then you can buy him out. If he also wants the house, you’ll have to ask an attorney who gets first right to buy the other out in your state.

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