Divorce and Exclusive Use of Home After Postnup Breach
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Reviewed & verified by A. Jason Velez, Esq.*
Managing Attorney, 1LAW · Last reviewed January 28, 2026
Legal Inquiry
Consumer Legal Issue
I have a postnup and housing agreement which states I'll pay the mortgage in my husband's name and make mortgage payments that he will reimburse me for. I made a 37k lump sum payment to avoid foreclosure. He violated the terms, hasn't paid me back, blocked me from making payments and now the house is facing foreclosure and he has tax debs that are effecting me. Can I file for divorce and exclusive use with structure so he is held accountable?
Our housing agreement said if foreclosure funds were not returned by a specific date, I would get exclusive use.
Attorney Answer
You can file for divorce now and seek exclusive use of the home, but the housing agreement's own "return the foreclosure funds or I get exclusive use" trigger doesn't enforce itself — a court must award that relief, and the path depends on whether a minor child lives in the home.
Under Maryland Code, Family Law § 8-101, spouses may make a valid, enforceable agreement about property rights, including the reimbursement and exclusive-use terms in your postnup. That gives a court something concrete to enforce, but it doesn't grant possession by itself. If a minor child lives in the home, Family Law § 8-208 lets a Maryland court award exclusive use and possession of the family home — even pendente lite, before divorce is final — weighing the child's best interests, each spouse's interest in the home, and hardship, with such orders lasting up to three years after divorce. If no minor child lives there, exclusive use would instead need to be pursued as a contract-based or equitable remedy tied to the postnup's terms, or through a general pendente lite injunction. Your husband's breach and the tax debts affecting you are strong leverage for interim relief, not an automatic entitlement.
What you can do:
1. File for divorce and immediately request pendente lite (interim) relief rather than waiting for a final hearing.
2. Ask the court to enforce the postnup's exclusive-use trigger under § 8-101, citing the missed reimbursement deadline.
3. If a minor child lives in the home, request a § 8-208 use-and-possession order alongside your filing.
4. Document the missed reimbursement, blocked payments, and tax debts.
⏱ Time limits apply. Foreclosure is active now, and a completed sale could moot both your exclusive-use claim and your equity before a normal divorce timeline runs its course. A local attorney should review your situation promptly to pursue emergency or pendente lite relief before the house is sold or foreclosed.
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Frequently Asked Questions
Are postnuptial agreements about property and reimbursement generally enforceable?
In many states, spouses can enter valid, enforceable agreements covering property rights and reimbursement obligations, which a court can consider and enforce during a divorce.
Can a spouse request exclusive use of the marital home before a divorce is final?
In many states, a court can grant interim relief, including exclusive use of the home, especially where a minor child lives there or based on hardship and other equitable factors.
What should someone do if a shared property faces foreclosure during divorce proceedings?
Seeking emergency or interim court relief promptly is generally recommended, since a completed foreclosure sale can eliminate options that would otherwise be available through the divorce process.
