I apologize in advance for the length of this post.
A number of months ago my wife (together 13 years, married 3) asked to have an open marriage and I reluctantly agreed (with the stipulation that if either of us ever felt uncomfortable in any way it would immediately stop). I only agreed because I feared that if I didn’t it would lead to her cheating and an eventual divorce. She met someone online and they started having an emotional/physical affair. “Uncomfortable” does not even come close to describing how this made me feel, as it ripped me apart inside. As per our original agreement, I explained how I felt and asked her to stop. She refused and decided that she wanted a separation/divorce, stating that she feels she no longer wishes to be monogamous.
Initially the plan was to have an in-house separation while she saved money to move out. We have a home with two mortgages and shared a car, both make pretty good money, but have no savings. This situation ceased being feasible when she insisted that she has the “right” to take our only car and spend a number of nights a week with her new boyfriend. To avoid the pain and severe emotional trauma of watching her carry on a relationship with a new man right in front of my eyes, I asked her what she needed to help her move out, and she said that she needed a car. I took a cash advance on my credit card and lent her the money. She found an apartment, and moved out. That was in December.
Before she left, we agreed on paper on how to split our debt, including the mortgage and car payment, but did not have the agreement signed/notarized. Since I was to remain in the house with the three dogs (thankfully we never had any children) she agreed to pay a bit less than half of the mortgage (basically we split it, and then I added to my end and subtracted from hers to bring my share to market rent value for a home this size) and a small portion of the car payment,with the understanding that both the house and car would be sold upon divorce. We kept a joint account open and both had direct deposit put in sufficient to cover these shared expenses. This stayed in place for less than one billing cycle.
Early in January I noticed that she stopped her direct deposit into the joint account. When I emailed her about it, she stated that “as per her attorney,” since I have exclusive use of the home, she is not obligated to pay anything. The mortgage is in both of our names, as is the deed. I cannot afford the mortgage payment on my own. While I am living here, upon her request, I leave the premises about once a week so she can visit the dogs.
I consulted with a few attorneys through my company’s legal plan and was advised that my best recourse is to stop paying the mortgage and let the home go into foreclosure, saving all the money I can during the foreclosure process. We already have one foreclosure pending on a second property, and I would rather not do this. She makes slightly more money than I do, and I think I have a fairly strong case for abandonment when all things are considered. The attorneys disagreed, and felt I would not gain anything even through an equitable distribution lawsuit.
I have tried contacting her with proposals for a separation agreement that would be legally binding, but she either does not reply or says that she will work with me on one when she is “ready.” I have stopped paying the mortgage, hoping that this would motivate her to agree to something, but it doesn’t seem to be working. I do not want to let the mortgage hit the 30 day late period and take the credit hit, so will probably take out a 401(k) loan to supplement my income to cover bills.
Do I have any legal recourse, or is the only motivating factor for her the harm that will come to her credit when/if I default on the mortgage? Any advice would be very much appreciated.