“It is dependency, not familiarity, that breeds contempt,” says author Marty Rubin. If you depend on your ex-wife to refinance your marital home after a divorce and she does not, she faces more than just your contempt. She faces a contempt of court charge from a Virginia Circuit Court judge.
Refi Gone Awry?
We will get into the details of contempt charges soon, but first let’s examine the reason you and your ex-wife need to refinance the house. Presumably you both signed the original mortgage, so both of you are financially responsible for paying on it.
Once divorced, the house no longer can belong to both of you: either you buy her out, or she buys you out, or you sell the place and split the proceeds. All of this is done through your property settlement agreement, which will include some wording, approved by a Virginia Circuit Court judge, about the disposition of your homestead.
If your agreement is to keep her (and any children you may have had together) in the family home, you are ceding ownership. She needs to reclaim the house as exclusively hers (getting your name off the mortgage).
The easiest, most direct way for your ex-wife to secure the home in her name only is through a refinancing in which she alone appears on the mortgage documents. The court recognizes this, and may compel language in the property settlement agreement that orders your ex-wife to refinance within a specific time (possibly a year, perhaps longer).
She Didn’t Refinance as Agreed
She may claim she forgot, or did not understand, or could not get a refinance without your income, or was waiting for loan rates to drop, or misplaced the paperwork, or forgot how to dial a telephone, or, or, or … Whatever the reason, you may be in for a nasty surprise if, some months later, you discover she did not, in fact, refinance the house and get your name off the mortgage.
Sure, you are upset, but move forward to reach your goal, not hers. Focus on getting your name off the mortgage; recriminations and tough talk can wait. Calmly inform her of three issues:
- She is in contempt of court if refinancing was stipulated in the divorce decree; and
- She is harming her own credit worthiness as well as yours
- She is delaying her financial independence
Contempt of Court
In Virginia, contempt of court charges in divorce matters are handled rather succinctly (for a written law) under § 20-107.3 of the much-quoted Code of Virginia:
“The court shall have the continuing authority and jurisdiction to … punish as contempt of court any willful failure of a party to comply with the provisions of any order made by the court under this section;”
In most Virginia cases, civil contempt is punishable by up to 10 days in jail and up to $250 in fines. (If you are truly fascinated by this topic, or struggle with insomnia, we heartily suggest a piece from the Virginia State Bar on this very topic)
Unfortunately, in the tradition of the proverbial “blood from a stone,” if your ex-wife’s income after divorce really does prevent her from refinancing the house, a court order will have little effect. Virginia judges balance law and practicality; they would see little sense in jailing a single mother if she simply cannot refinance the house but has upheld all other aspects of the divorce decree.
Can You Remove Your Name from the Mortgage without Refinancing?
Your divorce attorney may have foreseen the drop in your ex-wife’s income as a result of the divorce and engineered the property settlement agreement to deal with that. Clever writing in the agreement can protect you and give your ex-wife some choices:
- Many lenders will allow for loan modifications without a full refinancing, so the decree could stipulate that she work with the mortgage holder to remove your name (reassigning the loan)
- The decree can direct your spouse to use the slightly aggressive tactic of asking the lender to remove your name or she will refinance elsewhere
- You provide spousal support for a defined amount for a defined period so she can show credit worthiness for the refinance
Since your credit is tied to the house, you need to make regular spousal support payments and she needs to show them to the lender as proof she can handle the refinanced mortgage.
File a Show Cause
If your ex-wife can afford to get a new loan but simply refuses to pursue refinancing, your attorney can petition the court for her to show cause why she should not be held in contempt of the court order.
One psychologically useful argument your attorney can make to her attorney is that her independence begins with that refinanced mortgage. Her newfound financial freedom depends on establishing her own credit history.
Call in The Firm For Men
Some aspects of divorce are complicated, like real estate transactions and finances. Some are easy, like calling The Firm For Men at 757-383-9184, or contacting us online. We are ready to serve you, Virginia’s men, in family law matters large and small, complicated or simple. We protect men’s rights, and sometimes save their credit score, too.
