Instead of spousal support, can he cover the mortgage?

Posted on Jun 17, 2022 by Katie Carter

Spousal support is one of the trickier areas of law. For one thing, husbands don’t want to pay it. A few years back, the law was changed so that spousal support is no longer tax deductible. Though that sounds like a good thing – who doesn’t love money that the IRS isn’t counting towards your income, right? – it makes getting awards of spousal support in place particularly challenging.

Instead of a husband having any motivation at all to pay spousal support, under the laws as they currently exist, he has none. And, when you couple that with the fact that, having a spousal support case at all means there’s a very real disparity in income between the parties, you wind up with a scenario that means you have a wealthier spouse who is denying support to the poorer spouse, and the poorer spouse is (by virtue of his or her relative poverty) unable to fight the issue with the same vim and vigor as the wealthier spouse.

If you’re wealthier, you’re in a better position to spend the other party into a legal black hole that they then can’t get out of. It’s a challenging position to be in, both as the poorer spouse and as the attorney of the poorer spouse.

I hear women say things all the time, like, “It’s not about the money,” when the reality is that a divorce is all about the money.

That’s not to say that you’re a gold digger, though; quite the opposite. As a married person, you and your spouse were equal partners in your marriage. It wasn’t “his” money or “his” retirement; after the day you said “I do,” it became “our” money. So, asking for your percentage of what was earned or accrued during the marriage isn’t really an option that you’re exercising, it’s an entitlement under the law.

I know it might feel uncomfortable – especially if he’s being a jerk about it – but that doesn’t mean that it’s not equitable. Even if – and maybe especially if – there’s a big disparity in income between the parties, its ‘ours’ not ‘mine’. It’s important to remember that. We’re basically pooling all the things that you earned, purchased or acquired during the course of the marriage, and we’re dividing it equitably.

Equitable means something like ‘fair’, though it’s maybe not accurate to call them synonyms. The court could order a disproportionate award of the assets to one spouse over the other, though that rarely happens. Equitable distribution, the fancy legal word we use to describe how property is divided in Virginia, does allow it, but the reality is that most things fall fairly close to a 50/50 division.

That’s not to say that you get 50% of an asset overall, because an asset could be hybrid (part marital and part separate). You’ll usually only be entitled to 50% of what was earned during the marriage, and whatever was earned or acquired prior to the marriage or after separation is usually separate property – but you’ll want to double check on this with your attorney because, depending on the asset in question, different rules could apply.

Spousal support is usually the vehicle we use to rectify the situation when there are two parties with a large disparity in income.

Husbands don’t want to pay it – well, we’ve already established that – and many ex-wives need it in order to survive. So, what happens?

Sneaky husbands will try all sorts of things to keep as much access to the money as possible, and one of the ways I’ve seen them do this is by suggesting that they pay the mortgage in lieu of spousal support – while keeping the home either jointly titled or in husband’s name only – and then selling and splitting the proceeds after a period of time.

It’s essentially double dipping – trying to get credit for paying spousal support while still maintaining ownership of the home and basically recouping the support money when the property is sold. Sure, not all of the money paid each month goes to increasing the equity in the home, because there’s also the taxes, insurance, and interest, but still – it’s better than actually paying real spousal support.

Theoretically, this could work, but I would want to make it clear, if I were you, that I am taking MY money (as in, my spousal support) and paying MY mortgage. If I’m going to stay in the marital residence, I’m going to refinance it into my own name, buying out his interest, and putting the house in my own name. The money might be the same, but that way I’m using it to increase my ownership of the home – and not his!

Maybe you don’t want to keep your home. That’s fine, too. You could always sell it now and split the proceeds, and use the proceeds and your spousal support to start paying on a new home. Then, you use the money you receive as spousal support yourself to pay your mortgage yourself.

You don’t really want to blur the lines and, when it comes to home ownership after divorce, it’s generally not recommended. It also doesn’t make sense to allow him to pay the mortgage only to then try to take 50% of the equity later on. And what about the mortgage interest deduction?

No, it makes much more sense to cut the ties. Buy out his interest in the home. Or sell the home and split the proceeds now, using that to purchase your own home (or rent, whatever works for you) and use your spousal support to pay for it. He’ll have no interest in it, and you’ll have freedom.

For more information or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.