Do I Have to Keep Paying the Mortgage During My Divorce?

Whomever was paying the mortgage, or however the mortgage was being paid before the divorce was filed, should be same after the divorce was filed.  Absent some extraordinary financial changes happening,  spouses should continue paying what they paid before the divorce.  Filing a divorce should not disturb the status quo.

The filed Complaint for Divorce will not expressly obligate a spouse to keep paying the mortgage. However, most filed divorces in Clark County, Nevada include an order referred to as a Joint Preliminary Injunctions(JPI). Eighth Judicial District Court Rule (EDCR) 5.703 allows a JPI to be issued, requires both spouses to protect community property.

What Is a Joint Preliminary Injunction?

JPI expressly prevents either spouse  from selling, transferring, refinancing, or encumbering community property. In a sense a JPI is stating both spouses should continue with the status quo of their finances.  Both spouses should keep paying the bills and expenses they had before the divorce was filed.

If a spouse decides to break from the status quo and not continue paying  the bills and expenses they were paying before the divorce was filed, they could be violating the JPI.  Nevada courts have confirmed it’s binding and enforceable by contempt in Nelson v. Eighth Judicial District Court.  Family court judges can order financial sanctions for violation a JPI.  They can even hold a spouse in jail for a few days to get a spouse to comply with the JPI.

Violating a JPI, or not following the general financial status quo, does not automatically get noticed by a judge.   You will need to file a motion with the judge.  A motion is a request.   You will need to file a motion requesting your spouse be held in contempt.

The other option, and the one Right Lawyers likes to use, is to file a Motion for Temporary Orders. This motion is where a spouse will request temporary financial orders like child support, temporary financial support.   The motion can also include request for a temporary custody order like primary physical custody, or Motion for Exclusive Possession of the Home.

Can I Get Reimbursed for Paying the Mortgage?

No, you will not get reimbursed for paying the mortgage, because in a divorce all assets and debts will divided evenly.  All wages, income, savings, and debts of both spouses will eventually be divided evenly.   If all of these assets (and debts) are eventually being divided evenly, then any overpayments will equal be equaled out.  For example,  if your husband pays $2,000 for the mortgage, that is $2,000 he doesn’t have in his bank account to be divided.  And the wife, who didn’t pay $2,000 a month in theory has more money in her bank account that will be divided evenly with the husband.  If the judge orders the wife to pay $1,000 for the mortgage, the husband now has a $1,000 more in his bank account that will be divided.  And the wife, has $1,000 less in her bank account to divide.

Can I Ask for Temporary Spousal Support to Cover the Mortgage?

Yes, this is a common request in a Motion for Temporary Support.  Either spouse can file a motion for temporary spousal support, asking the court to formally order bill-sharing while the case is pending. Courts deciding this motion decide “need” and “ability” to pay.    The case of Engebretson v. Engebretson, wants the judge to look at whether the spouse requesting financial support has a financial need for support.   The judge will look at their monthly income minus their monthly expenses to determine if they have a need.  If they do, then the judge will look at the other spouse’s ability to pay.   They look at their monthly income and expenses to determine if they have enough extra money each month to pay.  If they do, then the temporary support is appropriate.  If they don’t, then a judge will not order them to pay support.

Can I Sell or Refinance the House While the Divorce Is Pending?

Not without either your spouse’s agreement or a court order.  All assets when a divorce is filed are held in a constructive trust for the judge to decide what to do with them. Similar to when you file a bankruptcy, where you are giving the judge authority over your assets and debts.  A divorce works the same way.  When you file a divorce, the judge determines what happens to any assets (and debts) that you and your spouse cannot agree to.  If your spouse will not agree to sell an asset, then you have to ask the judge.

Selling the home or adding a new mortgage to the home is typically a violation of the JPI, unless you have your spouse’s agreement or the judge’s blessing.  Violating it can result in contempt, and a court that finds a spouse tried to secretly dispose of property can award the other spouse extra assets to offset the loss.

If you have a legitimate reason to sell or refinance the home before the case concludes, the right move is to ask the court for permission rather than act first.  You can ask for a home to be sold with a Motion for Temporary Orders.

For who lives in the house while these bills are being sorted out, see Can I evict my spouse in Nevada. Learn how the house is valued and divided at the end of the divorce matter in Who gets the house in a Nevada divorce.

Next Step: Worried about falling behind on the mortgage during your divorce? Ask Right Lawyers about requesting temporary support.