When I got divorced the court allowed my exwife 1 calendar year from the day the divorce was finalized to get my name off of the mortgage. It has now been 2.5 years and on two separate occasions she has gone stretches of 5+ months of not paying the mortgage. This has caused my credit to go in the crapper completely and I cannot get a mortgage because her mortgage still has my name on it.. What can I do???
1 Answer from Attorneys
If the Court ordered that your ex-wife has to refinance the mortgage to get your name off within one year of the entry of the Final Judgment of Divorce and it is beyond that time, then you will have to file a Motion to Adjudge in Contempt against her.
It is probably best in the case of a Motion to Judge in Contempt that you do not specify that it is "Willful" contempt but just "Contempt" and to request that regardless of whether it is Willful or Technical Contempt by your ex-wife that you are seeking relief by ordering that in order to satisfy the contempt that the Court make an Order that the house be sold immediately to get your name off the mortgage. If you are to receive anything from the house or if you do not want to pay any of the costs associated with such a sale then the specifics of how this should be handled need to be dealt with carefully to protect you and depend upon both the Court's Findings of Fact and Decisions in your divorce as well as any Marital/Property Settlement Agreement that you may have entered into.
Many people get what the "Court ordered" and the court's approval/acceptance of the parties' Marital/Property Settlement Agreement confused.
If the terms you mention were not stated by the judge or were also contained in your Marital/Property Settlement Agreement that was approved/accepted by the Court, then your recourse may be that you file a Motion to Enforce the Marital/Property Settlement Agreement.
In that case you would identify the Agreement and Provision of the Agreement that has been violated as well as any penalties or consequences your Agreement sets forth for failing to abide by the Agreement and ask that the Court enforce the provisions.
For both motions it is your burden to prove that either that the Court Order has been violated or that the term of the Marital/Property Settlement Agreement has not been met.
Assuming you prevail your ex-wife may be given whatever the judge considers a reasonable time to comply with the Court's order. Thereafter, if your ex-wife fails to comply the Court is likely to order that the house be sold to remove your name from the mortgage.
The sale of a house by court order can be very tricky depending upon how much control the Court Justice decides it should exert with respect to the sale and what information is given to the Court. It is ALWAYS advisable to seek legal counsel regarding this process and have the Decision Pending Entry of the Final Judgment, the Final Judgment of Divorce, as well as any Marital/Property Settlement Agreement with you when you meet with the attorney.
If it is possible you should get the transcript of your entire divorce proceeding at the time of the final hearing and not simply the judge's decision. Issues can arise from the testimony that may affect the Final Judgment of Divorce if there is testimony to the contrary that may have been missed by the judge, the parties, or the parties' attorneys.
The forced sale of any house should be taken seriously so that you do not lose your shirt on top of your credit.
Strangely this appears to be one of the simpler things that could be done in Family Court, when in fact, it is more perilous than one might think. It is often like a wolf in sheep's clothing.
I wish you all the best in your efforts.