How to Force Refinancing During Divorce

By Jennifer Williams

Anger and belligerence sometimes abound between divorcing spouses. An angry spouse can go so far as to try to punish the other by refusing to follow through on agreements, such as refusing to refinance the marital residence as part of a buyout agreement. If your spouse is refusing to refinance property you owned jointly while married, there are steps you can take to force him to follow through.

Court Order

You can't force your spouse to refinance during your divorce, but the court can. For that to happen, however, you need a court order obligating him to do it in the first place. It's possible to ask the court to order your spouse to refinance by a certain date as part of a temporary order during your proceedings. The only other way to force refinancing is by including the requirement in the property settlement portion of your final divorce decree. In this case, your spouse would not be obligated to act until after the divorce is over, however.

Enforcement

If your spouse does not refinance by the deadline specified in the court's order, you or your attorney can file a motion with the court, asking that he be held in contempt. Some states will not hold a spouse in contempt for failing to honor monetary payment obligations, but almost all allow contempt for failure to comply with an ordered property transfer. In some states, such as Illinois, you must show that your spouse's failure to comply with the ordered transfer is willful, rather than because he was unable to secure financing.

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Contempt

If your spouse is held in civil contempt for failure to refinance, he will be fined, jailed, or both unless he complies with the order. If he's held in criminal contempt for failure to refinance, he can be fined or jailed regardless of whether he complies with the order. He can also be ordered to pay any attorney's fees or legal costs you incurred because you had to enforce the order to refinance.

Enforcing Final Decree

If you incorporate the order to refinance into your final divorce decree, your divorce will be over by the time you know your spouse isn't going to comply. Your remedy in this case is to go back to court and ask that your spouse be held in contempt. Your results may be less immediate, however, because the divorce proceeding is already over by the time you know you have a problem. You must then file a post-judgment motion to go back to court and reopen the issue.

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Can You Sell a Property Before the Divorce?
 

References

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