During a divorce, both partners often remain responsible for paying fixed expenses, such as the mortgage or rent, until final agreements have been made. This can lead to uncertainty and financial stress, especially when one of the partners leaves the home. Whether it concerns an owner-occupied home or a rental home: it is important to know who must pay which expenses during a divorce and what options are available to make clear agreements.
In this comprehensive article we explain how the payment obligations are arranged for an owner-occupied home and for a rental home, what the consequences are for the mortgage, how it works with the mortgage interest deduction after a divorce, what role the National Mortgage Guarantee (NHG) can play and when the court can intervene. That way you know exactly where you stand.
Why fixed expenses often lead to problems during a divorce
In a divorce, the living situation often changes faster than the financial and legal arrangements. It regularly happens that one of the partners continues living in the home while the other seeks accommodation elsewhere. Yet many obligations remain in place for the time being. As long as no final agreements have been laid down and implemented, both partners often remain jointly and severally liable for fixed expenses such as the mortgage or rent.
This means that payment arrears can have major consequences for both ex-partners. That is precisely why it is essential to make good agreements in a timely manner and to record them legally.
1. Owner-occupied home during a divorce
If you jointly own a home, in principle you are both responsible for the mortgage as long as the property division has not been finalized. This also applies if one of you has already left the home. There are roughly three options for handling the home during and after the divorce.
Option 1: Selling the home
You can decide to sell the home. The proceeds are then divided, or – if the home is underwater – any residual debt is settled. Until the sale is finalized, both partners remain responsible for paying the mortgage payments.
Selling the home can provide peace of mind, but also brings uncertainties, especially in a fluctuating housing market.
Residual debt and the National Mortgage Guarantee (NHG)
When selling the home after a divorce, a residual debt can arise. If you have a mortgage with the National Mortgage Guarantee (NHG), then the NHG can in certain cases offer protection against this residual debt.
It is important to know that NHG does not automatically forgive every residual debt. The sale of the home must necessary are due to the divorce. That means:
- The residual debt can be forgiven if neither partner can continue the mortgage independently.
- Can one of the partners afford the mortgage alone, but you still choose to sell? Then NHG does not always consider this a necessary sale.
In that latter case, you remain responsible for paying off the residual debt, even if the mortgage falls under NHG. It is therefore advisable to have it properly assessed in advance whether NHG debt forgiveness is possible in your situation.
More information about NHG can be found on the official website: National Mortgage Guarantee.
Option 2: Take over the home (buy out)
Another possibility is that one of the partners takes over the home. This means that this partner buys out the other and the home is placed entirely in his or her name. The partner who remains living there then becomes fully responsible for the mortgage.
As long as the buyout and transfer at the bank and notary have not been completed, both partners remain legally liable for the mortgage. It is therefore important to complete this procedure as quickly as possible.
Mortgage terms when taking over the loan portion
Many people think that the mortgage terms automatically remain the same when one partner takes over the other person’s loan portion. That is not always the case. For the loan portion being taken over, the current mortgage rules at the time of transfer.
This may mean that:
- the loan portion taken over must be repaid on an annuity or linear basis;
- the monthly payments increase compared to the previous situation;
- the tax treatment changes.
Therefore, always discuss this in advance with the bank or a mortgage advisor. The bank will also assess whether the remaining partner can afford the mortgage payments independently.
Option 3: Temporary arrangements during the divorce
In many cases, temporary arrangements are made during the divorce process about who pays the mortgage. For example, when one partner continues living in the home. These arrangements can be laid down in an interim arrangement or in the divorce settlement agreement.
Note: temporary arrangements do not change the joint and several liability toward the bank. If payments are missed, the bank can hold both partners liable.
Mortgage interest deduction after a divorce
The question of who is entitled to mortgage interest deduction after a divorce regularly causes confusion. The rules are strict and include an important transitional arrangement.
Mortgage interest deduction during the transitional period
Up to a maximum of two years after separating both ex-partners may deduct their share of the mortgage interest, provided that:
- the mortgage is still in both names;
- the partner in question actually contributes to the payment of the mortgage interest.
This arrangement offers temporary financial relief, but it is not unlimited.
After two years: what changes?
After the two-year period ends, the partner who moved out loses the right to mortgage interest deduction, unless the home has meanwhile been fully transferred into the name of the partner who stayed behind. To prevent tax problems, it is therefore important to arrange the final division within this period.
More information about mortgage interest deduction can be found at the Dutch Tax and Customs Administration.
Benefit from a lower mortgage rate after the divorce
The partner who buys a new home after the divorce can often benefit from the current mortgage rate. In many cases this is lower than the rate of an older mortgage. By taking out a new mortgage with, for example, a bank, the monthly payment can decrease.
The partner who remains in the old home usually keeps the existing rate until the end of the fixed-rate period. This difference can lead to imbalances, but is legally permitted.
2. Rental home during divorce
Different rules apply to a rental home than to a home you own. The division of payment obligations mainly depends on the rental contract and who is listed on it.
Joint rental contract
Is the rental contract in both names? Then both partners remain responsible for paying the rent, even if one of them leaves the home. Only when the contract is amended or terminated does this obligation change.
Rental contract in one name
If the rental contract is in the name of one partner, that person is legally responsible for the rent. The other partner has no obligation to the landlord, although arrangements can be made between them.
Court assignment of the rental home
In some cases, the court can decide who may continue living in the rental home, for example when minor children are involved. The tenant remains responsible for paying the rent.
You can find more general information about renting and divorce via: Government of the Netherlands – divorce.
Documenting agreements in a divorce settlement agreement
Whether it’s an owned home or a rental: clear agreements are crucial. These agreements are usually set out in a divorce settlement agreement. It can cover:
- who pays which fixed expenses;
- how long temporary arrangements apply;
- what happens if the home is sold or taken over;
- how alimony and other financial compensation are arranged.
If you cannot resolve it together, the court can make a provisional or final decision.
Checklist: fixed expenses in a divorce
- 📄 Map out all fixed expenses (mortgage, rent, insurance).
- ⏳ Make timely temporary arrangements.
- 🏠 Decide what happens to the home.
- ✍️ Record the agreements in the divorce agreement.
- ⚖️ Seek legal assistance in case of disagreement.
Need help with fixed expenses and housing during a divorce?
Do you have questions about the division of fixed expenses during a divorce, or would you like help drafting a divorce agreement? The family law attorneys of Arslan Advocaten are happy to help you with a careful and fair resolution of your divorce.
View our approach at family law – our approach or contact us without obligation via the contact form.
