Many times before a couple formally decides to get a divorce, they have been separated or living separately for some time. Just because one spouse has moved out of the family home does not mean that they are not responsible for making mortgage payments. Since they are paying for their new home as well, oftentimes the spouse that moves out is either unable or unwilling to make a payment for their former home's mortgage as well.

How a Mortgage Remains Even After Divorce

In many cases, a couple that has divorced will transfer ownership of the family home to the spouse that will remain living there. Unless the mortgage is also transferred, it is the responsibility of both to continue making payments on the home.

There are two documents that legally bind someone to making payments on a home:

• A promissory note; and
• A deed of trust.

Each of these notes is a promise to the bank that the full amount of the home will be repaid within a certain amount of time. Once these documents are signed, it is outside the realm of divorce court to cancel the mortgage agreement. In order for one name to be removed from a mortgage in the event of divorce, one of the spouses must refinance the mortgage.

In order to ensure that the mortgage has been refinanced, a divorce attorney should ensure that the separation agreement has some indication of what will happen with the home and legally mandate the refinance. If the home is unable to be refinanced, the legal decree should specify that the home should be refinanced.

The best way to ensure that a mortgage a spouse will pay a joint-mortgage following a divorce is to legally mandate what happens with the property. Should a former spouse cease to do so, the one that does not live in the home any longer can address the mortgage with their creditors, let them know they are no longer in possession of the home, and discover how they can work together to prevent the mortgage from affecting their credit. Many states will require that the home, if it has been given to one spouse from the other, be subject to hefty taxes and fees. Consulting with a divorce attorney prior to the divorce can help ensure that the family home is no longer the responsibility of those that no longer live there.