Legal Question in Real Estate Law in California
Can one soon to be ex-spouse sue another if the other stops paying half their mortgage? The first has been dragging their feet in getting the divorce finalized and the other is ready to walk away from a house that is already upside down. The Marital Settlement Agreement will read "both parties will cooperate to sell the house". The divorce is not finalized though at this point.
3 Answers from Attorneys
No you cannot sue for half of the mortgage. In fact, the one living in the house owes the community rent, which is presumed to be equal to the cost of occupancy. So the one living in the house may as well pay the whole thing. If they are the one not paying, and any orders are needed, you need to get them through the divorce case via a motion or an Order to Show Cause hearing.
I should add, that the reason for the motion or OSC would be because the court CAN order the occupying spouse (or the other spouse in some circumstances) to pay the mortgage. The court can also order the house sold before the divorce is final, in an appropriate case.
Mr. McCormick's answer is spot-on. The family law court has a great deal of latitude over the assets of the marriage. But it is not a slam dunk for you either. You need a lawyer. If you are in Southern Calififornia, and would like a free consultation, let me know.
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