As an experienced Long Islanders divorce lawyer, I know those going through a divorce are eager to learn how their assets will be divided, but rarely consider what portion of the marital debt they will carry after they divorce. Loans, mortgages and debts are just as important in the divorce process as assets.
Financing Contracts Survive Divorce
The terms of the contracts that you signed on jointly with your spouse – whether home, auto, or otherwise – do not change simply because you divorce. You are both still responsible to pay these debts. This means that you could be faced with difficulty when a court orders your spouse to pay, but your spouse does not pay. This can have a serious adverse effect on your credit.
If Your Ex Does Not Pay, You Could Still Be Responsible
If you have signed a contract and incurred a debt, you will be responsible for that debt even if a judge orders your spouse to pay. For example, if you purchased your home with your spouse, and you both applied for the loan and signed the mortgage note, you can both be personally pursued for the balance on the loan if there is a default. This means that even if your spouse continues to live in the home and you do not, you are responsible for making sure the payments are made. It also means that even if you have a divorce decree signed by a judge that orders your spouse to make the payments, you can nevertheless be held liable by the bank for the debt. If this situation arises, and your spouse defaults or does not make payments, your spouse can be held in contempt of court and face his or her own set of consequences. It does not, however, change the fact that your credit is imperiled by the default.
Foreclosure Can Be a Real Possibility
Unfortunately, some individuals face foreclosure as a result of divorce. This often arises when one spouse continues living in the house and cannot afford to pay the mortgage alone. This can further damage your credit, even if your divorce order states that your spouse was responsible for paying the mortgage as a term of your divorce agreement.
The first step in handling foreclosure is to address this problem directly. Speak to a trusted attorney, and speak to your lending institution. Modification or forbearance is sometimes a possibility, and many banks are interested in finding a solution to the problem. Make sure that you respond to any letters and phone calls you receive from the bank. Your attorney or housing counseling agency can provide assistance with these matters if you have questions.
Is Your Home Loan ‘Upside Down’?
In addition, if your house is “underwater” or your mortgage is “upside down” – meaning that your house is worth less then you owe on your mortgage – negotiations with your lender may be necessary. It is essential to address any concerns you may have about your outstanding debts and mortgages as early as possible in the process of your divorce in order to avoid surprises and adverse consequences later on.
Do You Know About All Your Spouse’s Debts?
Be aware of all of your household bills and debts, even those in your spouse’s name alone. Stay organized and keep thorough records, including times, dates and names from phone calls with your lenders as well as the content of your conversations. Keep dated copies of letters you send and receive. Keep copies of all of your account statements, paychecks, and financial correspondence. This will help you to assess your overall economic position as you head into divorce.
Paying Off Debts First Can Simplify Divorce
An attorney might advise you to pay off as many debts as you can before the divorce. Although this may leave you with less cash on hand, it might allow for a more straightforward divorce agreement in which you know what assets you will get (and keep) and will start a clean slate for life after divorce without debt and without your ex-spouse having an influence on your credit score.
Be Careful of Loan Modifications
Before you enter into any loan modification agreement, make sure that you can afford it. As eager as you might be to take a deal, remember that if you can’t ultimately swing the payments on your own, it will create more headache for you down the road. It is more important to find a solution that you can afford then it is to put a band-aid on the problem.
Have Questions? Contact an Experienced Long Island Divorce Lawyer
If you are a Long Island resident facing divorce in Nassau County or Suffolk County, it is important that you contact a Long Island Divorce Lawyer early in the process to avoid the common pitfalls and hazards of working through divorce on your own. The Divorce Law Firm of Hornberger Verbitsky, P.C. offers complimentary consultations and can provide professional advice on the unique set of circumstances around your divorce. Contact our office at 631-923-1910 to schedule your free consultation today.
For more information about Property Division in your divorce, visit our Complete Guide to Dividing Property in Divorce.
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