Can I Get My Ex Out of the Home to Catch Up the Mortgage?

Ask a Lawyer


My ex-wife was awarded the home in our divorce, but it is still in my name. She has not paid the mortgage for the past five months and has just begun foreclosure proceedings. We didn’t have attorneys, and there wasn’t anything in the decree requiring her to refinance in a given period of time.

Can I get her out of the house and catch up the mortgage to save the $30,000 equity that is at risk?

Texas divorce attorney Carrie Westbrook


This is one of the big dangers in representing yourself in the divorce! We would have drafted for you a document called a Deed of Trust to Secure Assumption. This type of Deed of Trust would basically allow you, in very simplistic terms, to take possession of the home back from your ex-spouse and to cure any default so as to avoid foreclosure.

You could try to get your spouse to voluntarily sign such a Deed of Trust to Secure Assumption over to you now or you may possibly be able to seek court intervention to force her to sign such a Deed of Trust, but you would need to consult someone immediately about this.

Alternatively, aside from getting the Deed of Trust, you may be able to use the language already in your decree to file a motion for enforcement against your ex-spouse to force her to comply with the terms. To be successful, such a motion typically requires specific provisions in the decree that your ex-spouse has violated.

For example, if the decree specifically provides that she is solely responsible for any and all debt on the home that is being foreclosed, you may be able to seek an enforcement as to that provision. While she may not financially be able to pay what is owed so as to become compliant with the decree, this could be a vehicle to get you back into possession of the home so that you can cure the default.

Further, if your decree has what is called an indemnification clause or other indemnification language, you may have the ability to bring the mortgage current so as to avoid foreclosure and then seek reimbursement from your spouse for your damages.

These are just a few of the potential courses of action that may (or may not) be available to you. It would require an attorney reviewing the specific terms of your decree before he or she could adequately advise you as to your options.

Remember, I am unable to provide you with anything more than divorce tips for men, so please consult a domestic litigation attorney in your area to obtain specific advice as to the laws in your state and how they impact your potential case.

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, contact Cordell & Cordell.

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