Divorce & Housing Money

by Beverly Bird
Unless your spouse earns a lot more than you do, you might have to come up with housing money on your own.

Unless your spouse earns a lot more than you do, you might have to come up with housing money on your own.

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Unless you've gone through a divorce before, the time right after you or your spouse begin the proceedings can be particularly stressful. You don't know what to expect and payment of ongoing bills is probably of paramount concern. Your options depend on whether your divorce is reasonably amicable or you and your spouse are fighting it out every step of the way.

Possible Foreclosure

If you and your spouse own your home, one of you may want to buy the other out and retain the property after the divorce. Otherwise, you might list it for sale. Either way, it is best to avoid foreclosure. Your mortgage lender isn't precluded from filing a foreclosure action just because you've filed for divorce. In fact, some states will include the lender as a third party in the divorce action so its rights are represented in issues of property distribution. To keep your divorce from becoming unduly complicated – and expensive – it's usually best to find a way to make the house payments if at all possible, removing this problem from the litigation.

Maintaining a Household Account

If your divorce is amicable, one solution is for you and your spouse to continue to maintain a household account. You can each make deposits sufficient to cover the mortgage and utilities. You can begin cutting the ties that bind by setting up separate personal accounts for yourselves, paying your own expenses – such as your car payment – directly. If one of you moves out, however, that spouse might find himself in the difficult position of having to maintain the expenses of his new household and contribute to the marital home as well. This can cost a bundle, so he might refuse to cooperate unless and until the court orders him to do so.

Pendente Lite Motions

If your spouse moves out and you can't make the mortgage or rent payments on your own, you can file an immediate motion with the court to ask for temporary maintenance or support. This is typically referred to as a pendente lite action, which governs the situation pending the final outcome of your divorce. In some states, such as Virginia, you can ask for pendente lite relief right in your complaint for divorce when you first file. In others, such as New York, you must file a separate motion. In either case, the court will review the situation and, if warranted, order temporary alimony to help you pay for housing. If you have children and you're the custodial parent – your spouse moved out and left the children with you in the home – you can also ask for child support as part of a pendente lite motion. Child support money is supposed to contribute to your children's housing needs, so you can use some of it toward the rent or mortgage.

Potential Complications

One problem with pendente lite support or alimony is that the court will typically only order it if your spouse earns more than you do. In most states, two circumstances must exist before support is ordered, even temporary support. One spouse must have a bona fide need for financial assistance and the other must have an ability to pay. If this isn't the case, the court may order your spouse to contribute to the mortgage payments to preserve the marital asset pending the divorce, but he might not have to contribute to rent payments. Speak with a lawyer about breaking your lease or listing your house for sale as soon as possible. Houses rarely sell overnight, particularly in a bad economy, but this course of action might forestall a foreclosure action by your lender and allow you to get a fresh, more affordable start sooner rather than later.