What Happens to the Mortgage in a Divorce: Responsibilities and Options Explained

When faced with a divorce , many issues arise, among others, custody of children, visitation , alimony , payment of debts…

Next, we focus on one of them, the payment of the mortgage on the family home after the divorce.

Who has to pay the mortgage on the family home?

It is common for couples who decide to divorce to have a mortgage loan on the family home pending payment.

The person obliged to pay the mortgage in the event of divorce will be the spouse or spouses who have taken out the mortgage loan.

If both spouses are borrowers, that is, holders of the mortgage, both are obliged to pay the bank (lender) the mortgage payments.

That is, the bank will claim the fee from the borrower or borrowers who appear as such in the contract, regardless of whether the marital economic regime is marital or separation of assets .

Thus, to know who pays the mortgage after the divorce, it will be necessary to take into account the property regime (matrimonial economic regime) corresponding to each marriage:

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Community property: Family home purchased and mortgaged under the property system

In this case, the home purchased will be community property (it belongs to both spouses on a community basis) and the mortgage granted by the bank will be owned by the spouses.

After divorce, even if the use and enjoyment of the home is attributed to one spouse, both spouses must pay the mortgage loan.

That is, the bank demands payment of the mortgage from both of them because it has been granted to both of them and does not take into account who stays in the home after the divorce.

This is the doctrine established by the Supreme Court, which considers the payment of mortgage payments as an obligation of the community property:

“It is a debt of the community property, because it has been contracted by both spouses for their benefit, since the property acquired and financed with the mortgage will have the nature of community property and will correspond to both spouses in half.” 

Separation of Property

If the economic regime of your marriage is one of separation of assets, 3 scenarios may occur:

1. Family home purchased and mortgaged by both spouses

In this case, the home belongs 50% jointly to the spouses and both are responsible for paying the mortgage 50%.

Therefore, upon divorce, both spouses must respond to the bank for the payment of the mortgage, that is, 50% of the mortgage payment to each spouse.

The responsibility for paying the mortgage falls on the spouses, whoever retains the use and enjoyment of the family home.

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2. Family home purchased by one spouse and mortgaged by both

If one spouse buys the home but the mortgage is requested by both, the home will be the property of the person purchasing it and the mortgage will be the responsibility of both.

That is, the home belongs to a spouse in full ownership and both are responsible for paying 50% of the mortgage after the divorce.

Also in this case, it will not be taken into account that the use of the home is attributed to one of the spouses, even if they are the non-owner.

3. Family home purchased and mortgaged by a spouse

In this case, the mortgage payment will have to be made by the owner and mortgager spouse , regardless of whether the use is attributed to the non-owner spouse in the divorce.

Ultimately, the payment of the mortgage must be resolved based on the marital economic regime and the ownership of the mortgage loan.

Can I agree to pay the mortgage in case of divorce?

Yes , when the time comes to resolve the issues of a divorce, you can agree with your spouse who will pay the mortgage after the divorce.

Now, BE CAREFUL, if you are both holders of the mortgage, the bank can demand payment from both of you, whatever your agreement is.

To avoid this situation, we advise you to go to the bank to negotiate the change of ownership of the mortgage.

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