Who Pays the Mortgage During a San Antonio Divorce?

When a marriage is ending, the house payment does not stop. It is due on the first of the month whether or not the two of you are speaking, and a missed payment hurts both of you. People tend to ask two separate questions: who has to pay while the case is open, and who is responsible for the loan after the divorce is final. The answers are different, and the second one is the one people miss. A divorce decree divides the debt between the spouses, but it does not change the contract with the lender. This page covers both periods, what the court can order, what the Bexar County standing order allows, how to get paid back when you carry the loan, and how to protect yourself if you are leaving the house.

As a San Antonio property division lawyer practice, we are asked about the mortgage in almost every first meeting. It is one part of real estate and marital home division, and the first consultation is free.

While Your Divorce Is Pending: Temporary Orders

The mortgage during the case is usually handled through temporary orders, which cover the time from filing until the final decree. How long a Texas divorce takes varies, and the payments continue the whole time. Family Code Section 6.502 lets the court, after notice and a hearing, render appropriate orders while the suit is pending, including these.

• Requiring payments for the support of either spouse (Section 6.502(a)(2))
• Awarding one spouse exclusive occupancy of the residence during the case (Section 6.502(a)(6))
• Prohibiting either spouse from spending funds beyond an amount the court sets for reasonable and necessary living expenses (Section 6.502(a)(7))
• Ordering payment of reasonable attorney’s fees and expenses (Section 6.502(a)(4))

The statute does not have a paragraph that says “pay the mortgage.” The list is introduced by the word “including,” so a court can enter other appropriate orders, and judges commonly address the house payment through support, occupancy and the spending limit. There is no formula. The judge looks at each spouse’s income, who is living in the house, what the household needs and what is equitable. Common results are that the spouse who stays in the house pays it alone, that both spouses keep contributing, or that one spouse pays the mortgage and receives credit toward support. Our guide to moving out during a divorce covers the occupancy question.

Before the Hearing: Keep Paying

A hearing takes time to schedule, and the payment is due in the meantime. The Civil District Courts of Bexar County use a standing order that, as we read it, takes effect when the petition is filed and binds both spouses. It permits reasonable and necessary living expenses, including shelter, and reasonable attorney’s fees. It bars selling, mortgaging or encumbering property, and incurring debt other than legal expenses, unless the order specifically authorizes it. For the mortgage, that has practical consequences.

• Paying the mortgage from the household’s funds should fit within the order’s allowance for living expenses. Do not stop paying to make a point. A missed payment goes on the credit file of everyone on the loan.
• Borrowing to catch up does not. A new loan, a home equity line or a cash-out refinance during the case is new debt and an encumbrance, and it needs the other spouse’s agreement approved by the court or an order.
• Keep the taxes, the insurance and the association dues current. If they are not paid through an escrow account, they are separate bills, and a lapse can cost more than a late mortgage payment.
• Write down who paid what. The source of the money, community earnings or one spouse’s separate funds, can matter later.

Paying With Your Own Money: Reimbursement

A spouse who carries the house payment with separate funds, or whose earnings go to a loan on a property the community does not own, may have a reimbursement claim (Family Code Section 3.402). In practice, reimbursement claims usually turn on principal. Payments that reduce the principal balance can support a claim, while payments of interest, taxes and insurance are generally treated as the cost of living in the house and often do not. A court can also reduce a claim by the value of the use the paying spouse received. Our guide on reimbursement claims explains how they are calculated. A claim is not automatic, so keep the records.

When the Payments Stop

If both spouses are on the note, each of you owes the lender. If one spouse stops paying, the lender can report the missed payments on both credit files, demand the full balance from either borrower and begin foreclosure. A temporary order that makes your spouse responsible is enforceable against your spouse in the family court, but it does not bind the lender and it takes time. If payments are slipping, call a lawyer and the loan servicer early, before the account is in default, and ask about enforcement of the temporary order. Do not assume that the person who moved out is safe, or that the person who stayed is.

After the Final Decree: The “Just and Right” Division

When the case ends, the court divides the marital estate in a manner it deems just and right (Family Code Section 7.001). The house usually ends in one of three places. One spouse keeps it and takes over the loan. The house is sold and the loan is paid from the proceeds. Or, rarely, the spouses keep owning it together under an agreed payment arrangement. Our guide to what happens to the house compares them. Who pays the mortgage after the decree follows from which of the three the decree chooses, and from the lender.

The Part Almost Everyone Misses: Your Decree Doesn’t Bind Your Lender

The decree is a court order between the spouses. The mortgage is a separate contract with a lender that was not part of the divorce. If both names are on the note, both of you remain liable to the lender until the loan is paid off, refinanced or assumed with the lender’s written release, whatever the decree says. If your ex-spouse stops paying, the lender can report the missed payments, pursue either borrower for the balance and foreclose. The decree allows you to enforce against your ex-spouse in family court, but that takes time and does not undo credit damage or protect the property.

Federal law gives one protection. A lender generally cannot call a residential loan due only because the property was transferred to a spouse or under a divorce decree, for a property of up to four units (12 U.S.C. Section 1701j-3(d)). It does not release the departing spouse and does not require the lender to let the keeping spouse assume the loan. Our guide to a mortgage in one spouse’s name explains the options in detail.

How to Actually Protect Yourself

Refinance as Soon as Realistically Possible

A refinance in the keeping spouse’s sole name pays off the old loan and replaces it, which takes the other spouse off the debt. An assumption can have the same effect, but only if the lender signs a written release for the departing spouse. Until one of those closes, both names stay on the loan. Remember that a refinance during the case is a new loan and needs authorization. If a refinance is not possible right away, discuss the gap with your attorney before you settle, and set a deadline in the decree.

Consider a Deed of Trust to Secure Assumption

When the departing spouse stays on the loan, a Deed of Trust to Secure Assumption is one tool. It is a document recorded against the property, alongside the decree’s award, that gives the departing spouse a lien and the right to foreclose if the keeping spouse stops paying. That is faster than going back to family court alone. It does not stop the missed payments from showing on credit before you act. It is easiest to raise during settlement negotiations, and whether it fits depends on the loan terms and the lender.

Address It Directly in Your Decree Language

A bare sentence that one spouse is responsible for the mortgage is weak. Better language sets a refinance deadline, says what happens if the deadline passes (usually a sale), requires the keeping spouse to hold the other harmless, and provides for attorney’s fees if the other spouse has to enforce. If the keeping spouse does not comply, the family court can enforce the division (see our guide on enforcement of property division orders), but a clear decree makes that faster and cheaper.

More About the Marital Home in a San Antonio Divorce

The mortgage connects to every other decision about the house. These guides cover the rest.

• Owelty liens: buying out house equity and why the timing of the lien matters.
• Stopping a house sale: what a spouse can do when the other wants to sell.
• Home under contract: divorcing when a sale has already begun.
• Dividing a rental property: income, depreciation and the tax cost of a sale.
• Dividing an expensive marital home: homes held in trusts or LLCs and the forced-sale question.
• What happens to debt: how the mortgage and other debts are divided.
• The Texas Family Code: how the code is organized and where these rules sit.

How We Approach the Mortgage

Barton & Associates has tried Texas cases since 2001, and the family law team includes Duane Graeff, our managing attorney with more than 26 years in Texas state and federal courts, and trial attorney Desirée Flye. We represent the spouse who is staying in the house, the spouse who is leaving and the couple who agree on a plan and want the loan handled correctly.

We begin with the loan itself: whose names are on it, what the balance and the payment are, whether taxes and insurance are escrowed and whether the account is current. Then we decide whether the next step is a written agreement, a temporary order, a conversation with the servicer or a settlement term.

Get a Real Answer for Your Specific Situation

A mortgage question has a due date, so call early. Our San Antonio office is at 115 Camaron Street, San Antonio, Texas 78205. You can get directions to our office before your visit. For the first meeting, bring what you can of the following, and call even if you cannot find everything.

• The most recent mortgage statement and the loan number, with the names on the loan
• The note, the deed of trust and the deed, if you have them
• Bank statements showing who has been paying the mortgage and from which account
• Property tax and homeowners insurance bills, and association dues if there are any
• Any late notices or letters from the servicer
• Recent pay records for both spouses, if you know them
• The cause number, the petition and the standing order or any temporary orders
• Any proposed settlement terms about the house

Frequently Asked Questions

My divorce decree says my ex is responsible for the mortgage. Am I still liable if they stop paying?

Yes, if your name is also on the original note. The decree is an order between you and your ex-spouse, and it does not change your contract with the lender. The lender can pursue you, and missed payments can affect your credit, until the loan is refinanced, paid off or assumed with a written release for you. You can enforce the decree against your ex in family court, but that does not bind the lender.

Who decides who pays the mortgage while our divorce is pending?

Usually the court, through temporary orders under Family Code Section 6.502, after notice and a hearing. The court can order support for either spouse, award one spouse exclusive occupancy of the house and limit spending to reasonable living expenses. Until a hearing, the Bexar County standing order allows reasonable and necessary living expenses, so keep the payment current and keep records.

If I’m moving out and my ex keeps the house, how can I protect myself?

Ask your attorney about a Deed of Trust to Secure Assumption, which can give you a lien and the right to foreclose if your ex stops paying after the divorce, rather than relying only on family court enforcement. Also seek a refinance deadline in the decree, a hold-harmless clause and a provision for attorney’s fees if you have to enforce. These terms are easier to get during settlement than after.

How soon should refinancing happen after the divorce is final?

As soon as realistically possible. Until the keeping spouse completes a sole-name refinance, or the lender signs a release in an assumption, both remain liable to the lender. Put a specific deadline and a consequence for missing it in the decree.

What if the spouse keeping the house can’t qualify to refinance?

Plan for this before the decree is signed. Options include a later refinance deadline, support that strengthens the qualifying spouse’s finances, a sale if the deadline passes, or a decision that keeping the house is not realistic. A lender will look at income and credit, so ask for a prequalification before you agree to the plan.

Can I stop paying the mortgage if my spouse has moved out?

It is risky. If your name is on the loan, a missed payment hurts your credit, whatever your spouse agreed to. If you cannot afford the payment, ask the court for temporary orders and talk to the loan servicer before the account falls behind. Do not stop paying to make a point.

Can the court order my spouse to pay the mortgage while the divorce is pending?

The court can enter appropriate temporary orders, including support for either spouse, exclusive occupancy of the house and spending limits (Family Code Section 6.502(a)). The statute has no paragraph that names the mortgage, and there is no formula. The judge decides after a hearing, based on each spouse’s income, who lives in the house and what is equitable.

Can I refinance or take out a loan on the house while the divorce is pending?

Not without authorization. The Bexar County standing order bars mortgaging and encumbering property and incurring debt other than legal expenses unless the order specifically authorizes it. A new loan needs the other spouse’s agreement approved by the court, or an order. Also, a lender will usually want both spouses to sign for a homestead loan (Family Code Section 5.001).

If I pay the mortgage with my own money during the case, do I get it back?

Possibly. A reimbursement claim can arise when one marital estate pays for the benefit of another (Family Code Section 3.402). Payments on principal are the usual basis for a claim, while payments of interest, taxes and insurance are generally treated as the cost of living in the house. A court can reduce a claim by the benefit the paying spouse received, so keep records of what you paid and from which account.

Who pays the property taxes and homeowners insurance while the divorce is pending?

They are part of the carrying cost of the house and are handled the same way as the mortgage: by agreement, or by temporary orders. If the payment includes an escrow, the servicer pays them from your payment. If not, they are separate bills that must be paid, because a lapse in insurance or taxes can cause the servicer to add charges to the loan.

What happens to the mortgage if the house is sold during the case?

The loan is paid off from the sale proceeds at closing, and the remaining proceeds are usually held until the court divides them or the spouses agree. A sale during the case needs the other spouse’s signature on a homestead and the court’s authorization under the standing order. Until closing, the payments must continue.

Talk to a San Antonio Attorney About the Mortgage

Who pays now, who is liable later and what the lender will accept can each be settled in writing, but only if you raise them before the deadline passes. Speak with a property division lawyer in San Antonio at Barton & Associates about your loan, your documents and your goals before you move out, refinance or sign a settlement.

Call our San Antonio office at 210-500-0000 or complete the online Free Consultation form to schedule a confidential meeting with a family law attorney in San Antonio. The office is at 115 Camaron Street, San Antonio, Texas 78205.

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Barton & Associates, Attorneys at Law
115 Camaron St, San Antonio, TX 78205
Office: 210-500-0000

Division: Family Law San Antonio
Practice Area: Property & Debt Division
Focus Area: Real Estate & Marital Home Division