Legal Question in Family Law in Illinois
my husband has a property settlement agreement for his previous marriage that was entered into by agreement of both parties w/o court input.
In this agreement the marital home was addressed as she had a certain amount of time to do whatever she had to to have his name removed. After the agreed upon time frame if this was not done the house would be put on the market with an equity split. It also had a clause that stated that during the time frame she had to do this if the home became in arrears for 2 months it would be immediately placed on the market with equity split.
During the period she had to refinance to get his name off the loan we had to take her to court 4 times because of her being over 2 months late on the mortgage. The Judge on the case refused to enforce that portion of the property settlement agreement because due to job loss my husband has not been consistant in paying support.
We again, after the expired date she had to refinance the home removing his name, took her to court to enforce that provision of the property settlement agreement. It was also brought up at that time she was also 2 months late on the mortgage. The judge again refused to enforce the provisions of the settlement agreement. She is now 6 months behind on the mortgage.
She has applied for a loan modification, etc leaving his name on the loan, continued to do so even when specifically told not to by us and also by the courts due to her modifing the mortgage leaving my husbands name on the loan.
Is there anything that can be done or do I have any rights? We also have children together and this is causing us a great deal of problems. My husband is still out of work we are not having the easiest time and because the judge refuses to enforce the agreement Both of our credit has been damaged, mine because of us being married. The judge in the case had stated last time we were in court, that because the amount of alimony & child support is at a reduced amount he felt bad for her because she cannot get approved for a loan on her own, but doesnt take into consideration her credit is not good & its not easy in these times to obtain a mortgage expecially being as late as it is. Do we or myself have any recourse we can take in this matter?
1 Answer from Attorneys
Who represented your husband in the original divorce, and who is going back to court to enforce the agreement against the ex-wife? If your husband is behind in support, how does he expect his ex to refi and still keep up the mortgage? Both your husband and his ex appear to be in default but their performance of their obligations appear to be dependent and that is how the divorce court is apparently viewing it. Clearly the current economic conditions as drastic as they were, were not contemplated, at the time of the divorce (unless it was in the last 1 to year and a half in which case I have serious concerns about how the agreement was drafted). These are extraordinary times. It may take some significant revamping of the agreement, and that may take his ex's cooperation. Unfortunately even though you were honest about explaining how BOTH sides are in default, the way you're explaining it, so far it sounds like it's been a one way street, against the ex. If a creative solution can't be worked out (and any attorney at this juncture would want to see the ENTIRE divorce decree AND be fully informed in the sequence of events), including the possibility of your husband getting back involved and helping out, about the only thing that may be available would be to try another judge if possible, or an appeal of the judge's decision, and for that you would need an appellate lawyer, and if it's beyond time for appeal....can't say.
PS I know how refis go with properties that have lost value.....I'm handling a "simple" condo refi and even though equity remains (amzaing) it's not as much as the loan program called for, and it's taken over 4 months so far.
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is currently licensed to practice law actively only in the State of Illinois, inactively in Florida. Responses are based solely on Illinois law unless stated otherwise.
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