The Impact of Foreclosure During Divorce

By: Steven D. Fichtman

As the economy worsens and housing markets continue to decline, many people have made the decision to allow their homes to go into foreclosure and to "walk away" from their mortgages. Some even continue to live in the home without payment as their foreclosure case moves forward.

In a divorce case, an issue can arise when only one spouse wishes to "walk away" or stop paying the mortgage. The other spouse may not agree for a number of reasons, including not wanting to risk a foreclosure on his or her credit, not wanting to risk losing the marital home and wanting to preserve marital assets.

Under Florida law, the parties have a joint obligation to maintain the asset, despite the wishes of one party to “walk away”. Therefore, a Judge can force the parties to continue to make the monthly mortgage payments and make both parties responsible for the mortgage. A Judge can also force each party to pay their share (or the full amount) of the mortgage each month until the divorce is final and it is decided what would happen with the marital home.

While the facts of every case are different, the important thing to know is that the parties have an obligation to remain current and responsible on marital expenses and responsibilities, including the martial home.