Do both spouses continue to pay a mortgage during the divorce process?

UPDATED: Oct 1, 2022

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Do both spouses continue to pay a mortgage during the divorce process?

My husband and I purchased our home before we were married – we do have a prenup
in place regarding the purchase of the home and what was to become of it in the
event of separation before marriage, but it does not outline the process for how
it would be handled during divorce.

We have always paid 50/50 on the mortgage. However, since I have moved out he has
told me to stop paying since I am not living there.

If I do stop paying my half of the mortgage since I am no longer living there,
will that disqualify any of my rights to the home?

Asked on July 2, 2018 under Family Law, Texas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Your divorce has NO bearing on your obligation to pay the loan, which is a contract between the two of you, on the one hand, and the bank or lender, on the other. If you are both on the mortgage, you are contractually obligated to pay the mortgage. While he cannot use your failure to pay against you in the divorce if he told you to not pay--though make sure it is documented that he told you to not pay; e.g. text message, email, etc.--if he defaults or fails to pay, the bank can sue *you*, too, for the loan, and your credit as well as his will be damaged.
And if you stop paying but it's not documented that he told you to stop and instead it looks like you simply unilaterally refused to pay, that can hurt you in the divorce, during the distribution of assets and determination of who gets to live in or get the home.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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