Divorce and Foreclosure

Divorce is the probably the biggest financial wrecking ball of all.

Need to File for a Divorce?

The person hurt the worst in a divorce, financially, is the homemaker with the lowest income or the lowest earning potential. Also, the spouse who does not expect and prepare for a divorce can be hurt more than the spouse who starts the proceedings and has time to plan for its consequences. Divorce and foreclosure, two of life’s most stressful events, can occur almost simultaneously.

If children are involved, the court will do what it can to protect their best interests. After the divorce or dissolution papers are filed, the judge issues child support orders. These orders control visitation schedules, health insurance, and child support payments.

Often, the spouse who has the children most of the time cannot afford to make the house payments. The court can order the other spouse to pay more support to keep the children in the family home. It will order a delinquent spouse to make up missed house payments.

A divorce can take over a year to work its way through the courts. A judge can issue emergency orders that require one or both spouses to contribute to the house payment and other expenses.

The spouses in long-term marriages are in essence required to support each other for life, unless there is a remarriage.

In California, if a couple is married for ten years or longer, the marriage is considered a “long-term marriage.” The court, of course, cannot require a spouse to pay more than he or she earns. Both parties can keep enough of their income to live on, but that may not be enough to save the marital home.

In one case, a California couple married during the 1950’s and divorced 30 years later. In the 1986 decree, the husband was required to pay his former wife nearly half of his take-home income as spousal support. She moved in with a boyfriend, but didn’t remarry. The former husband became ill and his medical bills took a larger part of his budget.

Later the husband asked the court to modify the spousal support award but the judge refused the request citing the length of the couple’s marriage. The husband’s house eventually foreclosed and he moved to an apartment.

  • If you are in foreclosure because of the financial fallout from a divorce, you need to take immediate action to get financial support from your spouse.
  • Contact your spouse and tell him or her to bring the house payments current or you’re going to see a lawyer.
  • Follow through immediately. Contact a lawyer and bring with you all documents relating to your house, including the latest mail you’ve received from them. Your lawyer will seek immediately court orders to protect the house.
  • If you think you can’t afford an attorney, realize that in many states, if you can’t pay for an attorney, the court can order your spouse to pay your attorney’s fees. It is possible to do a divorce yourself, especially if your spouse is cooperative.
  • If you don’t know an attorney you can present your case for free to a local attorney by contacting by contacting LegalMatch. You don’t pay the attorney anything unless you feel comfortable with them and they are willing to take your case.
  • If the divorce is final and the court requires a spouse to pay the mortgage, you can go back to court to enforce the order to pay in the event of nonpayment. If the house is in danger of foreclosure because of the spouses failure to pay, your lawyer may consider asking the court for a temporary injunction against the sale of the house. This step may not be necessary if the lender is reasonable and is aware of the reasons for the default. Keep the lender abreast of the legal steps being taken to get the defaulting ex-spouse to bring the payments current.
  • What about taxes? If you learn that you owe taxes that are attributable to your spouse or ex-spouse and you didn’t know about the items on the tax return that created the tax (e.g. your ex didn’t or wouldn’t share his financial situation with you), you may be eligible for “innocent spouse” relief.

You may also want to consider checking out a LegalMatch attorney. Their attorney’s are prescreened and the initial consultation is free and confidential. For further information about foreclosure read The Foreclosure Survival Guide: Keep Your House or Walk Away With Money in Your Pocket