Legal Question in Family Law in New York
What happens to the house?
My wife and I have been battling a divorce for over a year now and have gotten nowhere with the courts. It is the same argument each time, she wants more money. That aside, we still have a house to consider. She is living in the home with our 3 children. I have been paying more than enough support to enable her to pay the mortgage which she has not done. The last payment was made in 1/2004. The house is scheduled for forclosure in 2/2005 unless I sign an agreement to refinance. She is desparate. She said that if I signed the agreement to refinance, we could sign another agreement that she will have to assume the mortgage by 1/2006 and if she is unable to do so (which given her credit history and the fact that she was fired from her job in July after only being employed for 1 year, I doubt she would qualify to assume a loan for the remaining balance of approx. $95,000) the house is to be sold. If I sign this agreement with her, what happens when 1/2006 comes around and she can't get a loan and refuses to sell? Can I sell the house without her permission?
1 Answer from Attorneys
Re: What happens to the house?
A "new" loan or mortgage, in your name, (or in her name with you as guarantor) that your EX Wife is supposed to pay, is a bad, bad idea. There is no agreement or document that the two of you can sign, that the lender, would be obligated to consider, in the event your EX failed or refused to pay the note. If your EX doesn't pay, your only recourse would be to sue her for the money,... that you know, she wouldn't have.
Also, You would not be able to sell the property; and the lender would be able to proceed to a foreclosure, and screw your credit, even further. Such an arrangement would essentially mean that you would continue to be "wedded" to your EX, but in a way that you were never wedded before. Duties and obligations w/o any rights or authority. And it would be indefinite into the future.
Suggest: that you consider transferring the house to wife and help her to get a mortgage, based upon your regular child/spousal support payments to her and her recent prior and prospective income. You might be able to use Your part of the equity, as an offset to her share of your pension, or something else.
Think, be creative and don't allow yourself to fall into another trap.
Good luck,
Phroska L. McAlister,ESQ
The "Bad credit" can be explained, as based upon the marital strife; and the rate might not be great, not a regular or "A" paper bank mortage, but it is doable.
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