How is Your Mortgage Affected During Divorce?

May 31, 2017 by Brett Jones



The website Credit Marvel published an article titled “How is Our Mortgage Affected During Divorce?” that we comment upon here. The article’s text is in regular type; our comments are in italics. Here it is:


With all of the changes in the mortgage industry since 2008, divorce affects mortgage lending more than ever before. One divorce statistic that hasn’t changed since then is that about half of all marriages end in divorce. The United States has the 6th highest rate of divorce in the world. About 41% of first time marriages will end in divorce. The rate is slightly higher at 60% for second-time marriages. Couples that enter the altar for the third time are the most likely to divorce at a rate of 73%.

There is a growing trend in “gray divorce.” Couples age 50 and older are twice as likely to divorce now as they were in 1990. The rate is even higher for couples over the age of 65.

The good news is that if you are married for the first time and your marriage lasts longer than eight years, the odds are finally in your favor of staying together. Age at the time of the marriage is also a factor. Couples that wait until they are over the age of 25 have a better chance of staying married than younger couples. Wilkinson & Finkbeiner Family Attorneys have compiled a comprehensive list of divorce statistics that include a breakdown of statistics by religion, occupation, age, and other data.

The costs of divorce have an impact on making a decision to split. The average legal cost of getting divorced is $15,000. Many couples simply can’t afford to get divorced.  In our experience, the cost of divorce varies depending upon the divorce process utilized; it could cost much less for mediation, but could cost much more for litigation.  Please see our other blog posts which compare the difference divorce process options.

The Impact of the Financial Crisis on Divorce and Mortgages

The financial crisis of 2008 changed the economic climate for mortgage lending. Couples that got married before 2008, found it fairly easy to get a mortgage. Those were the days when lenders were happy to lend up to 125% of the value of a home.

Couples that look to get divorced after 2008 will find that it’s not so easy to get a mortgage as it was at the time they got married. The high rate of foreclosures and short sales have caused mortgage lenders to tighten up the criteria for mortgage qualification. This makes it more difficult for one spouse to buy out the other during a divorce.

Prior to 2008 most lenders considered owning a home to be a couple’s largest asset. It still is, but mortgage lenders are also keenly aware that a mortgage is a divorcing couple’s biggest liability. The responsibility for the family home and the mortgage payments that go with it are the responsibility of both spouses until the house is sold or refinanced.  This is true from the bank’s standpoint assuming that both spouses are names on the Note and Mortgage; however, this is not necessarily true from a divorce attorney’s standpoint or from the divorce court standpoint.  

Options for Managing the Mortgage During Divorce

It’s less likely that one spouse or the other will get the house in the divorce settlement. Regardless of what a judge decides, it’s more likely that a divorcing couple will make a decision about the house based upon which of them can actually qualify for a new mortgage.   We often see couples making decisions about the house based upon a number of  factors in additional to ability to qualify to refinance.

The easiest option to manage a mortgage during a divorce is for one spouse to refinance the house under his or her own name.  At the start of a divorce action, statutory automatic orders go into effect which prohibit a refinance during the divorce action unless both spouses consent in writing.   How the mortgage is managed during the a divorce is an issue that may need to be addressed at the outset of the divorce action, either by agreement of the spouses through their attorneys or if unable,then by application to the Court and subsequent court order.  The attorneys will consider the value of the home when settling the rest of the marital assets. The spouse seeking the refinancing needs to have good credit and adequate income to be in a good position to have a new mortgage approved. This works provided the couple is not past due on any mortgage payments for the last 12 months and the other spouse agrees to let go of the house.   In our experience, banks are generally reluctant to release either spouse from a joint mortgage obligation until one or the other spouse formally refinances the loan in which process one spouse’s name will be removed from the Note and Mortgage .

When neither spouse is able to purchase the other spouse’s share of the home and the real estate market won’t support the full debt that is owed on the home, it may be possible to sell the home on a short sale. A short sale is where the bank agrees to take less than is owed on the mortgage to avoid a foreclosure. This would leave both spouses without a mortgage to worry over. The downside is that pursuing a short sale will negatively affect the credit of both parties.  

Another means of dividing the house is for one partner to sign a quit claim deed. This transfers the interest from one spouse to the other. It’s important to consider that it doesn’t relieve either spouse from the responsibility for the mortgage. If the responsible spouse defaults on a mortgage payment, the other spouse will still be liable for it.   Any properly prepared Settlement Agreement would address this scenario as well as all of the other scenarios regarding the disposition of the marital residence, including detailing the obligations of both parties and the ramifications if one spouse or the other defaults on their respective obligation(s).

Depending upon the rental market for the area, spouses may agree to rent the home to a third party. This means that they will need to work together on the financial aspect of renting the home.

The final option is for divorcing spouses to continue living in the home together until  the other is in a better financial position to secure a mortgage to buy the home.  This living arrangement is not often sustainable.

Making an Equitable Financial Plan for Divorce

What seems like a reasonable divorce settlement on the surface can have negative long-term impact on spouses. A Certified Divorce Financial Analyst (CDFA) can be of valuable assistance to divorcing parties and their attorneys. CDFA’s are experts at identifying marital assets, developing a post-divorce budget and analyzing the financial impact of the proposed division of assets.  CDFA’s take a long-term approach to analyzing after-tax cash flow and net worth for the future five years and longer.

The Institute for Divorce Financial Analysts (IDFA) gives a simple example of how CDFA’s can help. A married couple with a $165,000 home has equity of $77,500. Other financial assets total $165,000. The husband nets about $68,000 per year. The wife has not worked during the marriage and hopes to get a job for slightly over minimum wage. The assets are divided equally, including deeding the home to the wife. The husband agrees to pay child support, alimony, and child support (sic).  The CDFA performed a long-term analysis and determined that the husband’s assets would grow dramatically while the wife’s assets would be completed depleted within seven years. The CDFA made suggestions to the attorneys that would put the couple on equal financial footing now and in the future.

Considerations for Getting a New Mortgage During Divorce

Mortgage lenders will consider all assets and debts when deciding to approve a mortgage. The spouse that applies for a mortgage will need to provide the lender with all pages and schedules of the divorce decree. The lender will consider all payments for alimony and child support payments as a debt when making a decision to approve a mortgage.

Attorney, Katie Connell, cautions divorcing spouses against buying a house before the divorce is final. She cites a case where someone put $10,000 earnest money down on a home and then was not able to secure a mortgage and lost the earnest money. The other spouse sought to be compensated for half of the $10,000, since it was a marital asset before the divorce was final.

Final Thoughts About Mortgages and Divorce

Divorce lawyers do more than help divide assets and manage the legal paperwork. They know that divorcing couples are running high on emotion, especially those that have children. Divorce lawyers will help their clients identify all current financial marital assets and work with the other spouse’s attorney to divide the assets as equally as possible. Nearly every couple has emotional ties to their homes and communities. The best divorce attorneys will help their clients make decisions based upon logic, rather than emotion. They do this by helping their clients paint a picture of what their lives after the divorce will look like. Often that includes showing them how letting go of owning the family home puts them in a better financial position overall.  



Pendente Lite Motions

May 25, 2017 by Brett Jones



Pendente lite. It’s pronounced “pen-den-tay lee-tay” and it’s Latin for “pending the ligation.” The phrase refers to motions made before a court for judicial relief  (outcomes) needed by a party  during the pendency of a lawsuit, without waiting until it ends. For example, in a divorce the “non-monied” spouse may need to apply to the court for monetary support from the “monied” spouse while the case is ongoing, without waiting for its conclusion. This can be practical if the case is likely to be pending longer than a party can reasonably wait.


Here are some things that can be accomplished with pendente lite motions in divorce:


  1.       Temporary child support;
  2.       Temporary spousal maintenance;
  3.       Temporary custody and visitation (though often these issues will be referred for a hearing)
  4.       Interim legal fees;
  5.       Expert witness fees;
  6.       Exclusive use and occupancy of the marital residence;
  7.       Non-compliance with the court’s Automatic Orders (for example, requirements to maintain health insurance coverage, auto insurance coverage, not change beneficiary designations, etc.)
  8.       Immediate restraints if a spouse removes or dissipates marital assets or is attempting to do so;
  9.       Restraints on a spouse undertaking certain actions (often if business assets are involved);
  10.     Directing the payment of specific expenses;
  11.      Directing the division of certain payments between spouses during pendency of the case (for example, IRA distributions or loan payments 50% to each spouse rather that 100% to one or the other).


If the parties’ interim issues can be resolved by agreement, then that is the first choice of good matrimonial lawyers as it is most economical for their clients. However, if consensual resolution is not possible, or if a spouse has taken improper action that requires immediate court intervention, then a lawyer should file a pendente lite  motion as soon as possible.


It is important to understand that upon the filing of the motion, the other side will be given time to respond to the motion, and the moving party will then have one last opportunity to reply.   It customarily takes a court 30-60 days to issue a decision from the time the reply is filed with the Court.   And of course, applying for judicial relief pendente lite doesn’t mean you’ll get all the relief you ask for.  But with a motion pendente lite, you can at least seek relief without waiting for the court’s final judgment.


It is best to discuss all of the considerations related to these applications with your attorney. because not only may the motion and the content of the motion have various strategic and other good and/or bad ramifications, but the terms of the decision often will then set the tone for how the remainder of the action may or may proceed.    



Collaborative Divorce –a Process Option Whose Time Has Come

May 3, 2017 by Brett Jones



Kim Ciesinski recently wrote an excellent article in the New York Law Journal explaining the advantages of collaborative law over litigation in divorce cases. She identifies upsides including  client-driven negotiation, privacy, emotional guidance and financial expertise. In addition, she characterizes types of couples who tend to choose litigation, mediation and collaboration respectively. These are generalizations of course, and whether you fit into one of these categories or not, the collaborative process should be considered before jumping into litigation.  You can read the article here.



Thinking about divorce – what to consider first

May 2, 2017 by Brett Jones



You’re thinking about divorce. It’s a complicated process, whether you look at it emotionally, financially or legally.  You are likely feeling all different emotions, sometimes minute to minute it changes – anger, confusion, fear, hurt, maybe nothing.   This is totally normal.  It is very important though to make rationale, educated, and mindful choices before or in deciding how to proceed with a divorce.  In doing so,  there are an numerous  considerations to contemplate.  Where should you begin?     Here are just a few of the factors to weigh:


You’ll have personal considerations:

  • What are your demands at work? You may have a project deadline coming up, or a period when you’ll be unable to take time off. Also, assume you’ll be stressed, even if you don’t have a high-stress job. You may need a “me” day or two.
  • Do you have flexible scheduling to attend court dates? You may want to “clue in” your boss if s/he is empathetic and can give you scheduling flexibility.
  • Can you trust your spouse to be honest? If so, you can get information more easily and reliably. You may even wish to do some of the work together, and will have more procedural options.
  • Do you have children? Divorce is a family affair. No matter how careful or loving you are, your divorce will affect your children and their welfare is taken into account as a matter of law. Also, you may want to get help about how to share it with them.
  • What kind of relationship do you want with your children?
  • Are any of your children disabled or do any have special needs?
  • Is your future relationship with your spouse important to you? If you have children, you need a functional relationship with your ex. Even if you don’t need it for co-parenting, you may want it.
  • Is your spouse working? Is your spouse’s schedule flexible?
  • Are you and your spouse able to make decisions together? What types? You may work well together on a co-parenting schedule but be unable to discuss money without help.
  • If you’re in a same-gender relationship, does this affect your separation? This is not solely a personal question; it may also be a legal consideration (see below) .
  • Has there been violence in your relationship? If so, you may be hesitant about negotiating with your spouse and feel the need for help.
  • Are you able to sit in the same room with your spouse? If not, some procedural options may be foreclosed or unadvisable.
  • Is alcohol or drug use impacting the divorce? You may wish to share this with your lawyer, as another’s addiction affects you whether or not you’re aware of it.
  • Is either of you in a particularly challenging mental state right now? For example, are you grieving the death of a parent? Anxious about things at work? Your child’s situation at school?
  • How do you want to feel during and after the divorce? Depending upon the divorce process you choose, there can be great differences in how you feel if your case is litigated as compared to an out of court process such as mediation or the collaborative process.   How are made to feel during the process?  How you treat your spouse, how your children are treated, and how you want to feel about your spouse and the process once it is completed all may look and feel quite different after a litigation as compared to a mediated divorce or a collaborative divorce.


Also consider your financial situation:


  • How will you finance the divorce?
  • How will you pay for your expenses and the family expenses during the divorce process?
  • How complicated is your financial situation? If your assets are many and diverse, simply identifying them may be a substantial task. Then they must be valued — another substantial task — then divided. Even if you don’t need help, you may want it.
  • Do you have a retirement plan? Retirement accounts may need to be divided in divorce, and different plans have different requirements for division. If that is necessary, it is often easier with the help of a professional.
  • Do you or your spouse have special ways of being paid for your work, such as stock options, restricted stock units, bonus plans, commission plans, or the like? These forms of compensation are harder to deal with than a simple paycheck and require valuation.
  • Does either spouse operate a business? If so, its value may need to be determined and will likely be a factor in your divorce.
  • Are either your or your spouse self-employed? Are all the sources of income reported on Federal/State Income Tax returns?
  • Same gender couples: Are there special tax, legal, and historical considerations? Especially if you’ve been together a long time, your marital estate may well be smaller than your “relationship estate”.


What are your legal considerations?

  • Is filing first important to you? New York has “no fault” divorce, which means it makes no legal difference which divorcing party is the plaintiff and which the defendant. However, if it makes a difference to you, tell your lawyer.
  • Do you want a legal separation or a divorce? In New York, legal separation is available to spouses who no longer wish to live together. Like divorce, legal separation formally sets out the rights and duties of each spouse regarding child custody and support, spousal support and property division. However, there are differences
  • Do you need to consider jurisdictional issues? For a New York court to issue a divorce decree it must have jurisdiction over the parties and over the subject matter. Jurisdiction can be defeated by facts such as too brief a residence in New York, among other things.
  • Do you have separate property? This means property acquired before your marriage and not mixed with marital assets. If property is truly separate, it will not be included among the marital assets to be divided in divorce.
  • Do you have a premarital or post-marital agreement? Such an agreement is a contract that a divorce court must honor unless there is a legal basis to set it aside.
  • If you are in a same gender relationship, what is your legal relationship? Married? State domestic partnership? Something else?
  • Are you or your spouse under a restraining order?


These are all considerations that you can discuss with us during your consultation.



Process Differences between Collaborative Law, Litigation and Mediation- The Process Chosen Can Make All the Difference

March 14, 2017 by Brett Jones

During a consultation with one of the attorneys in our office, we customarily will review the different process options  to divorce. (There are three ways and Lazar & Schwartz does all of them.)    As experienced attorneys, we have learned how important it is to educate our clients from the moment we meet, about their options to get divorced.  The process chosen to get divorced is one of the most critical decisions a person can make.    That choice can make all the difference for everyone involved, including but not limited to  the impact the divorce will have on children; the cost of the process; and in the type of resolution reached.   The article below describes the three ways and their differences. It is from a Toronto law firm but the process descriptions and their differences are the same in New York. You can read the article here.


Before selecting the process option, you should always consult with an experienced attorney who will provide you with more information about these process options and will guide you to make the best choice for you and your family.



Legal Consultation – Fee or Free?

February 28, 2017 by Melissa Rutkoske




At Lazar & Schwartz, we are often asked why we charge a consultation fee when some attorneys give free consults.  Our reasons are rooted in the quality of a potential client’s decision-making following the consultation.


A thoughtful and thorough consultation takes time. Both attorney and client need to spend enough time together to sense if they are compatible to work together. This sense may be almost instantaneous, but mostly it is not. The lawyer is doing what she does every day, but a prospective client in a matrimonial case (our exclusive area of practice) almost surely is not.  Instead, s/he is contemplating or undergoing the arduous transition from married to single, with all the stress that momentous change entails. Even the most serene divorce makes a person not him/herself. Behavior is different; perceptions are different. Getting acquainted in these circumstances doesn’t happen in a normal way or at a normal speed.  It takes time.


Especially if a divorce case proceeds to litigation, the attorney and client must be able to work together in a very special way. Even though all divorces are court-ordered, not all clients actually go to court. When you stand before a judge you want to feel that the lawyer standing beside you is with you and for you.  That certainty is not achieved in any consultation, no matter how long, but you definitely do not want to proceed past consultation with a lawyer if your initial take on him/her includes a shred of doubt.  Better for both attorney and client to spend the time required for a well-considered decision.  You do not need to hire the first lawyer you consult with.


At Lazar & Schwartz we don’t treat the consultation as a chance to sell our services. We believe that even before being retained, a lawyer who is attuned to people, especially people under stress, should be willing to spend the time it takes to answer the many questions that are always present when a person is contemplating divorce or experiencing the strain of other family problems.


We are paid for our time; in return prospective clients get the information they need to make informed decisions. These decisions concern not only legal representation but equally or more important, how to proceed legally in a way that is most comfortable for them. (There are multiple legal processes for divorce – litigation, mediation, collaboration – that are treated elsewhere in our blogs and at our Divorce Options™ workshops, because different people prefer different approaches.)


We find that most potential clients feel more able to make informed decisions about legal representation if they don’t make the decision in a rushed environment.  Most free consultations are for a half hour. And of course it goes without saying that no one should feel pressure to make such an important decision on the spot.


At the end of the day, we want for a potential client of our firm to feel confident that a lawyer’s thoughts offered in consultation are expert and honest and without the taint of a sales pitch. Instead, our potential clients pay and our attorneys provide the knowledge needed to proceed.


Who should I Call? Find Appropriate Resources and Services for Your Clients: An Interactive Panel to Identify Mental Health Resources for Service Providers in the Hudson Valley

February 8, 2017 by Brett Jones


It is often difficult for mental health service providers in private practice to be aware of the multitude of services available to them and their clients in the Hudson Valley. This panel presentation will be a forum for mental health service providers to come together to share, learn, and network about various mental health services within our communities and how they may be beneficial to their clients.

Who? ARC of Dutchess County: Developmental Disabilities, Autism Spectrum Disorders

 Astor Services for Children and Families

Dutchess County Department of Behavioral and Community Health

Family of Woodstock

Health Alliance Hospital: Psychiatric Emergency Services and Partial Hospitalization Program

Hudson Valley Collaborative Divorce and Dispute Resolution Association

Mental Health America of Dutchess County

Mental Health Association in Ulster County

Mid-Hudson Addiction and Recovery Centers, Inc.: Dutchess County Stabilization Center

Oren Kalus, MD: Psychiatric Inpatient Admissions; Psychiatric Referrals and Medication Issues

Step 1: Substance Use Disorder Treatment

Ulster County Department of Social Services


When? Sunday, February 12th; 10am to 12pm

Where? Vassar Brothers Medical Center, Conference Room B; Poughkeepsie, NY

Cost: Free for HVPA members; $10 for nonmembers

RSVP to: Jonathan Rust at

Sponsored by:



Introducing Your New Love to Your Children

February 3, 2017 by Melissa Rutkoske



You’re divorced or separated and you’re dating someone you’re serious about. You want to introduce your new partner to your children. You want this introduction to go well. After all, these are the most important people in your life. How do you make it a success?


Constance Ahrons has written a book that covers this.[1] She says factors you’ll want to consider include how long you’ve been divorced or separated, the ages of your children, and the level of commitment between you and your new partner.


A threshold principle is “Easy does it.” The weight of opinion is if your new squeeze isn’t serious, don’t introduce him or her to your children at all. If your new relationship is serious (i.e., you’ve been dating long enough to start really knowing someone), you have everything to gain by going slowly.[2] Introducing your loved one to your children too soon may trigger insecurity or even rivalry.


The introduction should not be heavy or emotionally laden. A group setting, something casual and informal, usually works best. Maybe you’ll have several such group get-togethers with this casual tone.


Let your kids know they have only two parents — one mom and one dad – and neither of them is being replaced. For their emotional security, kids need to know there’s enough love to go around, and that your new love interest does not replace your ex or displace them. While this may be obvious to you, they need reassurance. To help with this, you may want to let your ex know; after all, you are the parents.


Post-divorce or post-separation, your top missions are healing yourself and helping your children heal from that experience. You want to give yourself and them a “soft “landing” if you can.  If you try your best and that doesn’t happen, be gentle with yourself. Yes, you control what you do; however, you don’t control how others respond.


[1] We’re Still Family: What Grown Children Have to Say About Their Parents’ Divorce (Harper Collins, 2004). In this book Dr. Ahrons interviews 173 grown children whose divorcing parents she had interviewed twenty years earlier.


[2] There are views to the contrary. For example, Michele Zipp writes in favor of introducing your new partner to your kids sooner than later. Your can read her article here.


Family Offense Petitions

February 3, 2017 by Melissa Rutkoske




The breakup of a family, no matter how civil or calm, can be tense and stressful for all its members.  People who have behaved rationally in the past may not do so during this time, and family members should not be surprised by behavior indicating pent up anger, frustration, even rage. If a family offense is committed, you need help; if a family offense is likely, you may need help.


A family offense is a crime committed against someone with whom the perpetrator has an intimate relationship. It is not up to you to figure out the legalities of this – was what my partner did a crime? Is what I’m afraid of a crime? It is up to you, if you feel unsafe, to tell your lawyer or otherwise take care.


There are resources to assist families at risk of a family offense, including:

  • local police (telephone numbers vary by city and town),
  • Grace Smith House (tel. 845 452 2715),
  • House of Faith/House of Hope (tel. 845 765 0294)
  • Domestic Violence Hotline (tel. 845 485 5550)
  • Child Abuse Hotline (toll-free 800 342 3720)
  • private counselors and therapists, and
  • the courts


Should you feel that you need the protection of the courts (professionals may send you there), the Dutchess County Family Court is equipped with the right resources to help.  Grace Smith House provides a worker who is located on the second floor of the Dutchess County Family Court building at 50 Market Street in Poughkeepsie who will actually draft the family offense petition based upon your input.  This worker will walk you through the process until you are sent up to the third floor to be seen by a Judge or Referee.   It is always best to get to the courthouse either first thing in the morning at 8:45 a.m. in order to be seen before lunch, or 1:45 p.m. in order to be seen that day.


The Judge or Referee who hears your case will want to know in your own words what is happening that makes you feel unsafe.  Based upon this information, the Judge or Referee will issue an Order of Protection (the relief most often granted under a family offense petition) if he or she feels that you are in harm’s way.  The Order of Protection can grant complete or limited relief ranging from a 1,000 foot “stay away” order to a “full stay away” order or a “refrain from harassment” order.  The Order can have your family member removed from the home, or merely ordered to “be good”, forbidding the perpetrator from misbehaving toward the person filing the petition.  It is important that before you enter the courtroom, you know what type of relief you believe will be necessary for your own safety.  You should feel free to tell that to the Judge or Referee hearing your case.


Once you have been issued the Order of Protection, make sure that your local police department has a copy of it and that you keep a copy with you at all times.  It is the responsibility of the local police department or sheriff to serve the order upon the family member whose behavior is governed by the Order of Protection.  You will be given another court date to return to court and you will be required to return to court every three to six weeks until the matter is resolved, either by settlement, withdrawal of the petition or trial.


While it is uncomfortable to enter into the legal process unrepresented, often we send our clients to the Dutchess County Family Court in order to expedite the process if we feel their safety is at risk.  You should feel assured that the Court will hear you and protect you during this time and you should not hesitate to use this resource if you feel unsafe.


Divorce Options Presentation – February 4, 2017

January 30, 2017 by Kathryn Lazar

Lawyer Kathryn S. Lazar, Psychologist Joy Dryer and Financial Advisor Jon Tanner will be presenting an informational program this coming Saturday from 8:30 am – Noon at the Fishkill Courtyard Marriott.  The program is entitled “Divorce Options”, and is presented the first Saturday of every month either in Fishkill or Poughkeepsie and also in White Plains.  If you know anyone who could benefit from a general understanding of their choices – kitchen table, mediation, collaboration and litigation – or if you would like more information yourself, please join us.  Therapists and Clergy enter free with a business card or identification; general public pays $45.00 at the door but can register for $40 on  Therapist referrals get a discount to $20.00.   Check out the information or sign up at or at and then click on New York, or call us at 845-896-9651 if you would like more information.