Refusal to Pay Mortgage and Breach of SA


#1

Two questions:

We have already signed and dually executed the Separation Agreement. We have also been granted a divorce. In the SA it says that the ED will be 66% wife, 34% husband. Wife pays full mortgage payment (both names on mortgage and deed) and husband, who lives in the home, will pay for the expenses of the house. Husband has lived up to his end of the SA paying for all expenses on the house. Wife is now threatening to not pay the mortgage in full (because she needs to pay for personal expenses instead). She would like to pay for 1/2 of it and use the home equity line of credit to pay for the remainder. She needs the consent of the husband to do so. He is unwilling to grant this permission. Therefore she is threatening to not pay it at all. Can she do this? What recourse does husband have? The house is on the market and has been for over a year.

Part of the SA also has wife paying husband a settlement in lieu of alimony. The sum is around $75,000. At the time of divorce he was paid $15k. It then stated that if the house was sold prior to a specific date (which has passed) they would split the proceeds in half and she would pay him the remainder of the settlement. If the house was not sold by that date, she would pay him the remainder of the settlement. She has not done so. Husband can sue for specific performance/breach, correct? Wife is claiming that there was inequitable distribution of assets (now), but has waived the right to argue that per the SA.

Husband has offered to transfer the house to her (so that she can do as she like with it - without affecting husband’s credit) and offered to set up a payment schedule for the settlement (tied to wages) if she cannot afford the lump sum settlement. Wife thinks husband is crazy because why would she want to assume the debt of the house solely AND pay him the settlement.

So what recourse does he have on the mortgage? Transferring it? Making her pay the mortgage per her duty in the SA? And should he sue her for specific performance for the settlement?


#2

If wife fails to perform her responsibilities under the Agreement she is in breach and husband may sue her for specific performance on both issues.


#3

Thank you, Erin.

If for some reason she agrees to take the house and release husband from the mortgage, what is the process for doing that? Would the SA need to be revised? how long would it take? Etc.


#4

One other questions, Erin. Wife is claiming that she does not have the money to pay him the settlement, mortgage, etc. If he sues for specific performance, how will he get his settlement if she doesn’t have the funds? an he tie it to her wages? 401k? stocks?


#5

The court will enter a judgement against her and may require that she pay the funds out of other property.