Ex-Wife has not refinanced home


#1

Separated: April 2013
Divorced: August 2014
So in the separation papers it states the following:
The parties agree that Wife will reside in the Marital Residence and maintain the property, including making all payments associated with said residence. Wife shall assume all obligations arising out of the note(s) that is secured by the deed(s) of trust relating to the Marital Residence and shall pay all sums becoming due thereunder and shall maintain adequate insurance on the property and pay all ad valorem taxes as the same become due. Also, Wife shall indemnify Husband from and against all obligations, claims and expenses, including reasonable attorney’s fees arising out of or relating to the aforementioned note(s) and deed(s) of trust. Wife shall make her best good faith effort to refinance or otherwise solely assume the mortgage debt associated with the marital residence such that Husband’s name is removed from the same.

I’ve asked her when she’s going to refinance or assume the mortgage and she’s said she’s tried but not able too.
My son told me she’s now in debt consolidation and her credit score is 475.

I’m afraid regardless of what this document says if she fails to make payments it will effect my credit score also and the bank’s don’t care if it says she pays or not. Since my name is also on the loan they will come after me.

Can I take her to court and have them force her to refinance because it’s been over 3 years which is more than time?
If not, force the sale of the home.
She received 1/2 of my 401K just after the divorce and I know she didn’t roll it over, she took the cash.
So she had ample opportunities to refinance.


#2

The court cannot force her to refinance if she does not qualify to refinance per the bank. However, she would be in breach of contract if she is able to refinance and is refusing to do so.

Your agreement states that she is to indemnify you for any liability on the mortgage. That means if you have to pay to keep the mortgage current, then you could sue her for reimbursement.

This indemnification language is common in separation agreements, particularly when there’s a possibility that the spouse keeping the marital residence will not be able to refinance.


#3

I’m not sure how much of the 401k money she has left. But I do know after taxes she got over 50k so at that time she could have used some of this money to help refinance the home.
So wouldn’t this count as a breach at that time? Or am I too late to do anything?


#4

If your contract was notarized, it’s probably not too late, however, to be successful, you would have to prove that the bank would have allowed her to refinance when she received the money. This is because you have to show that she had the ability to refinance but refused to do so.