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How Do Post-Separation Mortgage Payments Affect Classification and Division of the Marital Home?

The classification of equity created by post-separation mortgage payments is on its face a straightforward matter:

  • Equity derived from mortgage payments made after separation is classified as marital property (and therefore subject to division in divorce) if the mortgage payments were made with marital funds
  • Equity derived from mortgage payments made after separation is classified as separate or nonmarital property (and therefore not subject to division in divorce) if the mortgage payments were made with one spouse's separate funds
  • Equity derived from mortgage payments made after separation is classified as marital property (and therefore subject to division in divorce) if the source of the funds used to make the post-separation mortgage payments cannot be identified.

However, because courts are generally not required to give credits to a party who makes post-separation mortgage payments from her or his separate funds and because the law governing the classification of post-separation mortgage payments lacks a consistent, formal structure, the effect of post-separation mortgage payments on classification and division of the marital home can be difficult to predict. If you have questions about how mortgage payments made after you and your spouse separate may affect your share of equity in the marital home, contact our firm today to schedule a consultation with an attorney.

Agreements Regarding Post-Separation Mortgage Payments

Separation does not preclude the use of marital funds accumulated during the marriage to make mortgage payments that come due following the separation. Spouses who decide to separate may be able to avoid some of the uncertainty created by post-separation mortgage payments if they agree who will make post-separation mortgage payments and from what source of funds the payments will be made.

Date of Classification

Where post-separation mortgage payments are made from income earned after the separation, it is usually necessary to identify the date of classification to determine whether the equity derived from those payments will be considered marital or nonmarital property. The date of classification is determined by the law of the jurisdiction in which the divorce petition will be filed. Depending on the jurisdiction, the date of classification could be the date of divorce, the date of separation, or the date the divorce petition was filed.

  • Date of divorce. In general, if the date of classification is the date of divorce, equity created by post-separation mortgage payments made from post-separation income is classified as marital property (and therefore subject to division in divorce).
  • Date of separation. If the date of classification is the date of separation, equity created by post-separation mortgage payments made from post-separation income is typically classified as separate or nonmarital property (and therefore not subject to division in divorce).
  • Date of filing. If the date of classification is the date the divorce petition is filed, equity created by post-separation mortgage payments made from post-separation income is classified as marital property (subject to division in divorce) to the extent it was earned before the petition was filed and is classified as separate or nonmarital property (not subject to division in divorce) to the extent it was earned after the petition was filed.

Temporary Spousal-Support Orders

A temporary spousal support order and the date of classification (as determined by the laws of the jurisdiction in which the divorce petition will be filed) may cause post-separation mortgage payments to affect the classification and division of the marital home.

If a temporary spousal support order is in effect, a claim or credit for post-separation mortgage payments may arise if the payments are made by the:

  • Recipient spouse and with funds received pursuant to the temporary spousal support
  • Payor spouse in satisfaction of all or a part of her or his obligation to pay temporary spousal support

If the date of classification is the date of separation, a claim or credit will probably not be allowed because all post-separation mortgage payments made in substitution for temporary spousal support come from the payor's separate income and for the recipient's separate or nonmarital living expenses.

If you have questions regarding the laws and rules governing the classification of post-separation mortgage payments in our state, contact our office today to schedule a consultation with an experienced family law attorney.

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