My ex and I divorced 2 years ago, she had a lawyer and I did not. We owned a house jointly. In the decree, it states that I am responsible for paying the mortgage to her then she pays the bank but the house stays in both our names. I agreed to this as I was living in the house and had nowhere else to go, despite the fact that I was taking on an $1100 mortgage making $13k a year (I could only do this as I had 2 roommates). Now the roommates have moved out and I moved to a cheaper house. She is still holding me to paying the mortgage and any repairs to the house and the mortgage has increased to $1360/month. I'm still making less than $20k a year. Is there any way to modify this to make it more equitable esp as my circumstances have changed & there's no way I can afford the mortgage?
Also, is this considered spousal support or a property settlement as I've read property settlements can be invalidated if my circumstances changed or if she had a lawyer and I did not? the divorce decree also stipulates we are to sell it if I move out but she is dragging her feet and I can't afford to go back to court to enforce it and I can't afford the mortgage in the meantime. Lastly, do I need a lawyer to file for a modification or can I file on my own? Also our divorce was in TN but I live in FL, do I need to file in TN? Thank you so much for your help, I really appreciate it.
Mary Reid Mayo MorellyDebt Collection AttorneyOrlando, FL ·
Yes it's possible to file a Petition for Modification. Generally to modify, there has to be substantial material changes in circumstances in order for the court to modify it. Your roommates moving out may possibly qualify but I would advise speaking with an attorney who handles Modifications. Many attorneys, such as our firm, will at least consult with you for FREE regarding the specifics of your case. Just wondering: why didn't you find new roommates to replace the ones that moved out? And why does your ex want to even keep the house if she is not living there? It might have been better to have sold the house and split the proceeds, unless of course, there is no equity.
There may be more than one way to resolve your issue. One of them is to file for a modification, if you qualify and it is a provision that can be modified. Another may be to dispose of the home by short sale. You may want to try contacting your lender or an attorney in that area.
Its difficult to say without seeing the actual Marital Settlement Agreement but it appears that this provision would be considered part of your property division/equitable distribution. Unfortunatly, property division awards (or agreements) are non-modifiable despite a future change in circumstances. In some cases, particularly those dealing with Florida real estate, the implications of this can be harsh but the Court will not/cannot grant relief.
You could claim that your obligation to pay the mortgage is alimony, which would make it modifiable but you would have to prove that your income went down substantially since the entry of the Final Judgement (which does not appear to be the case). The good news is that if the provision is equitable distribution/property division then it is not subject to contempt and therefore if you fail to pay then the most a court could do would be to enter a Judgment against you...which likely would not be an issue given the financial circumstances you describe. Of course, your best bet is to get the Court to require the sale of the house as quickly as possible (possibly through an auction) in order to be done with this obligation once and for all.
Clearly whatever you choose to file must be filed in Tennessee, not Florida. I suggest that you consult with an experienced family law in the city in which your divorce was filed, being sure to bring your Final Judgment with you to the consultation.
The answer to your question would need to come from an attorney licensed to practice law in Tennessee. It would appear, however, that the simplest way to handle this would be to seek to enforce your settlement agreement as it pertains to listing the home for sale now that you have moved out. You may be capable of filing an enforcement action on your own, however, you would be better served retaining counsel to handle this. Assuming that you have equity in your home, it is possible you can retain an attorney who would wait for payment until the house sells.
