Lovers, like marriages, can end. Statistics in this sense are rather ruthless. But what happens to a possible joint home loan ?
Not infrequently we are faced with cases of separation or divorce of couples who during their married life have entered into a mortgage together to buy the house in which they thought they were living happily ever after. If there is not this coveted happy ending what happens to outstanding mortgages?
During the practice of separation or divorce it happens that the house is assigned to one of the two spouses and the other could understandably want to lighten also the weight of the loan on the property which can no longer be used in the state of the facts; proceeding in these cases is not always simple and straightforward. Here are what different possible scenarios open up.
Home loan: who pays in the event of separation or divorce?
Let’s start from a basic fundamental consideration: the home loan is an autonomous contract that does not depend on the agreements and economic issues concerning the marital crisis. Surely the bank can not pay the costs of ending a marriage. The fact that spouses are in the condition of separated or divorced can not in other words exonerate from the payment of the loan , which remains an obligation of both parties.
That said, it is equally true, however, that the same marriage judge, when he is called to make important decisions on the future life of the spouses and any children, can not fail to take into account the onerous commitment on the shoulders of each of the two.
A classic example is the case in which the conjugal house remains to the wife, but the mortgage on the house completely serious on the husband: the judge in establishing the amount of the maintenance allowance must also take into account the mortgage payments, lightening to an extent proportional to the amount due to the former. The judges then, in special cases and especially in the presence of minor children, can intervene in favor of one or the other spouse.
Home mortgage: the effects of divorce in the presence of children or without
What makes the difference is the presence or absence of young children. In fact, in the case of consensual separation , the spouses without children who have entered into the contract with the bank may decide to modify it if they agree. In this case the possible solutions are basically three:
- The spouses may decide to allow the home loan contract to remain joint despite the separation in place, while both remain in obligation to pay with the bank. In the case of non-payment by one of the two, the bank may decide to seize their assets. However, if the mortgage is registered only to one of the two, perhaps to the person who leaves the house, the payment of the same can be considered as a “substitute” of the maintenance allowance;
- Spouses can decide to sell the house, thus extinguishing the loan and dividing any income;
- In agreement with the bank, you can also decide to reformulate the home loan contract with one of the spouses (the one holding the house) and compensate the outgoing for half of the installments paid before the termination of the relationship. In this case, the favorable opinion of the institution that granted the loan to the change is necessary: the bank must protect itself and, in order to do so, must verify that the holder has the income capacity to pay the installments in a timely manner.
Things, as can be guessed, are complicated (and not a little) in the presence of underage children . In this case, in fact, the house does not remain to the holder (of the building and of the loan) but to whom of the two former spouses receives the children in custody. For those who pay the loan, the possibility of deducting the expenses incurred is provided for.
As long as the spouse in charge of the mortgage continues to pay all in all, things go well but what happens in case of insolvency? The Court of Cassation, and this will not appeal to many women who have won home with their children, has authorized the bank to sell the house. In fact, the mortgage prevails, stipulated before the sentence that assigns the house to one of the spouses.