Mortgage payment on marital home


#1

A follow-up question. My ex lives in marital home with our 15 yr old minor son. I moved out in August 09. She finally divulged her income in 2010: $4583/month. Mine is $8500. She refused to cooperate in setting a CS figure. So I used your CS calculator, and gave her a printout and a check on Jan 15th for $834.86 as the first CS payment. To date she has not cashed the check. She did however, borrow $1289 on our old joint HELOC. That is the amount of the monthly mortgage payment, including taxes and insurance. To date she has not made the Jan 31st mortgage payment. I’ve put a block on any further borrowing by either of us on the HELOC.

In addition to CS to her, I am paying all of the direct costs of college for our oldest son: about $1420 on a monthly basis. So my question is, if she just refuses to pay the mortgage and I have to step in and do so in order to protect my credit, is there anything I can do? I directly paid the mortgage during the balance of 2009 while living elsewhere. However we can file a joint tax return for last year. Beginning this year we cannot do that, so I get no deductions. She has retained a lawyer, but I have not heard anything, nor do I know if my ex’s actions are on advice or just on her own. I don’t understand, but I have about had enough. Can you actually evict your ex-wife?


#2

You can file an action with the court seeking an interim allocation of debt.
With respect to the taxes, if you have paid the mortgage you may claim the interest deduction.
You cannot evict your ex, but can seek an order requiring her to pay the mortgage.


#3

I am sorry, but I do not understand what an interim allocation of debt means. If you are referring to my ex’s borrowing on our HELOC, it’s not enough money to take any legal action. Better to just stop either of us from unilaterally doing it again.
With respect to deductibility, I believe you are referring to 2009 taxes and a joint return for that year. My understanding from your earlier responses is that now that we are separated and she occupies the house, starting in 2010 only she can claim the deductions for interest and property taxes. If I pay the mortgage directly and we sell the house within 6 months of our youngest son’s date of emancipation, all payments beginning now would be deemed CS and totally non-deductible. Please confirm. Sorry for the bother.


#4

An interim allocation of debt can be used to order one party to pay the mortgage debt (or other debts)

The spouse who pays the mortgage can claim the interest deduction, even though you have moved out it does not mean you have abandoned the home as your principal residence if you moved out solely to allow the separation period to begin. Paying the mortgage is not child support.


#5

[quote=“Erin Clarey”]An interim allocation of debt can be used to order one party to pay the mortgage debt (or other debts)

The spouse who pays the mortgage can claim the interest deduction, even though you have moved out it does not mean you have abandoned the home as your principal residence if you moved out solely to allow the separation period to begin. Paying the mortgage is not child support.[/quote]

I am confused by the above statement because of the IRS pub 504.

I am divorced. My former wife and I are on the deed and on the mortgage. Our equitable distribution consent order states that we will sell the house immediately. It has been on the market since October. It would have been on the market in August, but my ex defied the court order and refused to sign a listing agreement.

The eq distro order does not specify who will pay the mortgage. I live in the house alone since Sept 2008 and have 50% custody. Since September 2008 I pay the complete mortgage and property taxes. We have no order that states that I must do this. The only statements are:
The parties shall immediately list the residence for sale.

Further, there is no issue that the proceeds from the sale of the residence shall be distributed to Plaintiff and Defendant equally.

I pay her alimony- $1000/month for a total of 13 months, in addition to the $20K I’ve already paid.

My research indicates that IRS pub 504 states: If I have an OBLIGATION to pay the mortgage

http://www.irs.gov/publications/p504/ar02.html#en_US_publink1000175949
Table 4.Expenses for a Jointly-Owned Home
I can deduct 1/2 of the interest I paid. She can deduct the other half.
I can deduct 1/2 of the property tax. She can deduct the other half.
I can claim 1/2 of the interest and 1/2 of the property tax as ALIMONY paid to her.

Questions:
Does my interpretation seem correct?
When the house does sell, will she be able to claim half of the proceeds without having to compensate me for the principal I’ve been paying down on the mortgage since Sept 2008? Is there a law about this?

Thanks!


#6

If you are living in the home and paying the mortgage you can claim the deduction. The rule you cite is in reference to a situation where the spouse not using the home as his or her principal residence that has an obligation to pay.