Spouse won't agree to short sale or foreclosure


#1

My husband and I need to be separated, but cannot afford two separate households with our current home. We built a custom home during the peak of the housing boom and are now underwater by about $120k. My lawyer has told me that we have few options to get out of the house. He suggested that my husband and I go talk to the bank to see if they would be willing to agree to a short sale or having us sign over the deed. If not, he suggested that we let the house go into foreclosure. My husband will not agree to any of these. I feel like I am being held hostage without any options. What options do I have? I need to get out of the home. He won’t leave. Even if he did, I wouldn’t be able to keep up the house. If I leave, I wouldn’t be able to help pay the mortgage.


#2

You need to move out and immediately file for equitable distribution and include a motion for interim distribution of the home and the mortgage debt. This will enable you to put the house on the market and hopefully sold before a foreclosure can occur. You will need to be living separately though before a court can step into this because it’s a part of ED.


#3

Thank you for the reply. I am still unclear on what to do. Our house has been on the market for over eight months. No one has looked at it. We would have to drop our price about $115k below what we owe on the mortgage to get it to move. Together, we can afford the house. Apart, we cannot. We need to be apart, but I just don’t see how to get out as long as we have the house. If I leave, I will still be responsible for my portion and also rent elsewhere. Are there any options? I feel like I am being held hostage.


#4

I understand that if you leave, you can’t afford to help cover the mortgage and the rent. You seem to be underwater by quite a lot, and I am sorry but I cannot advise you on how to relieve yourself of this burden. You should speak to an attorney who practices in real property law, since you are trying to avoid a foreclosure. You might also want to consult with a bankruptcy attorney for more information about possible options that may be available to you. Good luck.


#5

I am not trying to avoid foreclosure. I want my spouse to agree to either a short sale or letting the house go into foreclosure, but he will not agree. If I move out, what can my spouse to do me? I need to get out of the house. Does this not fall under the ED during a divorce?


#6

Based on the facts you list, he may attempt to seek an order for an interim distribution of debt (contribution from you to the mortgage), but if he is in the house, and able to afford the payments, worst case, I would say is that the judge would order you to pay half. I would suggest you negotiate a Separation Agreement and Property Settlement which outlines who is to pay what percentage of the mortgage, an amount of child support, ect, before you move out. I suggest you begin talking with your spouse to see what the two of you can agree on, and have an attorney draft up an Agreement. You may also want to check out our DIY service which can help you draft your own agreement.