Managing a jointly owned home

Going through a separation is a complex journey, which becomes even more complicated when shared assets like the family home are involved, especially if it's burdened by a joint mortgage. This situation raises doubts and concerns not only emotionally but also financially. Understanding the available legal options is the first step towards making informed decisions and protecting your interests. As an expert lawyer in family law in Milan, Avv. Marco Bianucci assists spouses in navigating these delicate transitions, aiming to find fair and sustainable long-term solutions.

Agreement between spouses: the preferred route

The most effective and least conflict-ridden solution is almost always a consensual one. Spouses can independently decide the fate of the property, formalizing their wishes in the separation agreement. The most common options include selling the property to a third party, with the subsequent division of proceeds and mortgage settlement, or one spouse buying out the other's share. In the latter case, one spouse acquires exclusive ownership of the home, taking on the remaining mortgage and paying the other a sum as compensation.

Judicial assignment of the home

In the absence of an agreement, or in the case of judicial separation, the Court decides. The primary criterion guiding the judge's decision is the protection of the children's best interests. The family home is usually assigned to the parent with whom the minor or non-economically independent adult children reside. It is crucial to understand that assigning the right to live in the property does not alter ownership rights: the home remains jointly owned, but the non-assigned spouse loses the right to live there, while remaining a co-owner and, as we will see, jointly liable for the mortgage.

What happens to the joint mortgage?

The mortgage issue is one of the most contentious. The separation agreement or the court order regulates the relationship between the spouses, but has no effect on the bank. For the lending institution, both spouses remain jointly and severally liable debtors. This means the bank can demand the entire installment from either one, regardless of who lives in the house or their internal agreements. Ignoring this principle can lead to serious consequences, such as being reported to credit bureaus and foreclosure proceedings.

Mortgage settlement or assumption

There are mainly two solutions for managing the mortgage. The first, and most definitive, is the settlement of the loan, typically through the proceeds from the sale of the property. The second is the assumption of the mortgage by one of the spouses, usually the one who acquires full ownership of the home. The assumption can be 'cumulative', leaving the other spouse as guarantor, or 'liberatory', an option that requires the bank's explicit consent to completely release the outgoing spouse from all future obligations. The bank will assess the income capacity of only the spouse intending to take over the mortgage before granting the release.

The Strategic Approach of Studio Legale Bianucci

Every family situation is unique and requires personalized analysis. Avv. Marco Bianucci's approach, a divorce lawyer in Milan, focuses on defining a clear strategy from the outset. The goal is to protect the client's assets, exploring first and foremost the possibilities of an agreement that can satisfy both parties and ensure economic stability. Where an agreement is not possible, the firm provides rigorous legal assistance in judicial proceedings, ensuring that every financial aspect, from property division to mortgage management, is handled with the utmost expertise to protect the client's rights.

Frequently Asked Questions

Who pays the mortgage on a jointly owned home after separation?

From the bank's perspective, both spouses remain obligated to pay the mortgage, as they are jointly and severally liable debtors. Separation agreements can stipulate that the installment is the responsibility of only one spouse or divided according to a certain proportion, but these agreements are only valid between the spouses. If the spouse who committed to paying does not do so, the bank can take legal action against both.

Can I sell the jointly owned home if my ex-partner does not agree?

No, to sell a jointly owned property, the consent of all owners is required. If an agreement on the sale cannot be reached, the only recourse is to go to court to request the dissolution of co-ownership and the judicial division of the asset, which can also lead to the forced sale of the property at auction.

What happens if one of the parties stops paying their share of the mortgage?

If one spouse stops making payments, the bank can demand the entire installment from the other co-owner, due to the joint liability. The spouse who paid for the other then has the right to take legal action (recourse action) against the defaulting ex-spouse to recover the amounts paid on their behalf.

Does the assignment of the home to one spouse eliminate my obligation to pay the mortgage?

No, the assignment of the family home is a provision concerning the right of habitation and does not affect either ownership or the obligations contracted with the bank. The non-assigned spouse, if a co-owner of the mortgage, remains legally obligated to contribute to the payment of installments according to the agreements or court orders.

Request a Consultation for Your Case in Milan

Managing a property and mortgage during a separation requires clarity, expertise, and a strategic vision. Relying on an experienced professional can make the difference between a balanced solution and a lengthy dispute. If you are facing this delicate situation, Avv. Marco Bianucci offers legal consultation at his office in Milan, located at Via Alberto da Giussano 26, to analyze your specific case and identify the most appropriate path to protect your rights and your future. Contact the firm for an in-depth evaluation.