Divorce and Mortgage QuestionsThe answers to the following divorce and mortgage questions can help you understand what your options are concerning the marital home, and who is responsible for the debt.
Can he be required to pay the mortgage until it sells? Lynn's Question: I am going thru a divorce, and we are selling our home. My husband said if I leave he will not pay the mortgage and he will not move out either. My name is on the mortgage and I don't want to loose my credit. Is there some form he would have to sign to keep up with the mortgage, so I could move out. Brette's Answer: You need to get a temporary order from the court about this. While he can be ordered by the court to be responsible for the mortgage payments, if your name is on the loan you will ultimately be responsible in the eyes of the bank. He can be ordered to refinance, but that's hard to enforce. Is it considered taxable income if he makes the mortgage payments? Sue's Question: I was awarded the family home in our divorce seven years ago. My ex was to pay me each month the mortgage until the home was paid off. In the meantime, I paid off the mortgage from it's sale. I have been claiming his payments to me to pay the mortgage as income on my taxes each year...yet, should I be paying taxes (while he is claiming deductions) if this is actually money he owes me for my winning the home in the divorce? If not, can I go back on my taxes and revise them? Brette's Answer: You need to consult with your attorney to determine if the payments were designated as alimony or property settlement. Alimony is taxable; property settlement is not. Good luck. » Return to top Can he take over the title and mortgage if it's only in my name? Kim's Question: I currently have only my name on the title and mortgage of our home and I'm getting a divorce. Since in this economy, the house is no longer an asset to me, I'm asking for my husband to take over the title and mortgage and release me of any responsibility for the house in the divorce settlement. What do I need to do to accomplish this? Quick Claim Deed? He needs to re-finance? Brette's Answer: The only surefire way to do this is to have the deed transferred to him and a new loan taken out in his name. Am I liable for half the payment if my name isn't on the mortgage? Jill's Question: I am getting a divorce and have moved out of the marital home. I am on the deed but not on the mortgage. My future ex is threatening me with half the mortgage expense since I moved out 5 months ago (we are trying to divide things as much as possible without attorneys to save money). He also wants me to pay him half if the house doesn't sell in a timely manor. Am I responsible for the mortgage both in the past and future? He makes three times as much as I do. Brette's Answer: In your situation it is unlikely a court would require you to pay half of the mortgage. I know you're trying to save money, however it would be well worth your while to pay an attorney for an hour or two consultation so that you could find out how a court would rule in your case and you can then negotiate from a place of knowledge. Will I be compensated for the mortgage equity I helped build? Lorranda's Question: My husband of 13 years and I live on property that belongs to his family. I will be the one that has to leave our home since it is sitting on HIS family's property. We are still paying for the house and pool and my name is on both notes. He will assume both notes with no fuss, but what about the 13 years I'VE invested into the loan? Will I get any of that back? Or do I just move out and start all over from scratch and consider it a lesson learned? Brette's Answer: No, you most certainly do not walk away with nothing! The equity is marital property and must be divided in the divorce. This means that if he's going to keep the house, you're going to be entitled to take other property (such as investments, car, cash, etc). You should schedule a consultation with an attorney who can go over your rights with you. Will he have to pay me back for the down payment I made? Janice's Question: I put $53,000 down on a house with Inheritance money from separate funds. The house is now in my name. I owe $393,000 and the house value is around $400,000. I was told by others that I would have to split $7,000 in equity, but I could not get my original amount back from my spouse because there is no equity to subtract it from? I was under the assumption that he would have to pay it back to me. Brette's Answer: I'm not sure why you think he should have to pay it back to you. Should he be awarded possession of the home, I could perhaps see it then, but if you keep the house that's not how it would work. You need to go see an attorney who can help you determine what if anything your spouse contributed to the value and upkeep of the home. Do I have to reimburse him for half the mortgage payments? Paula's Question: I owned my house and it is in my personal trust. After I married we transferred the mortgage to our bank for easier payoff. My husband never contributed and money toward the payoff. I paid off the entire mortgage myself. We are getting a divorce and he is stating that he should be reimbursed for 1/2 of the mortgage claiming he paid it off. How do I prove this is not true? And would his accusations hold up in court? Brette's Answer: The problem is that unless you used separate property to pay for it, he may be entitled to this. If you used marital funds to pay for the mortgage, the increase in equity is likely a marital asset. You need to be able to show cancelled checks or bank statements that prove the payments came from separate assets (money you had at the start of the marriage or which you received by inheritance or other separate property mechanism). Money earned by you during marriage is a marital asset. Am I responsible for the mortgage if he stays in the house? Jennifer's Question: My ex will be staying in the house until it sells. Am I obligated to pay any portion of the mortgage? Brette's Answer: If this went before a court, whether you were required to pay would depend on your and your ex's entire financial circumstances. As far as the bank is concerned, if he doesn't pay, they're coming after you as long as your name is on the mortgage. » Return to top Should I keep the mortgage in my name if he keeps the house? Debbie's Question: My husband and I are getting a divorce and he wants the house. He wants me to keep my name on the mortgage for 1 year after the divorce, but he would make all the payments. Then he would take over the mortgage. We can't sell the house now since we wouldn't get enough to pay off the mortgage. Is it legal to do this after a divorce? Brette's Answer: Yes it is legal. However, you need to consider the risk this puts you at. If he doesn't make the payments, you're the one the bank is going to come after and it will be your credit that is damaged. You need to talk to an attorney before agreeing to anything. » Return to top What if we can't sell and neither of us qualifies to refinance? Emily's Question: The mortgage is in both of our names, and neither one of us can afford to carry the mortgage by ourselves. What should we do? The way the market is right now we owe more than the house is worth, so even if we tried to sell it we wouldn't get what we owe. Brette's Answer: You're in a bit of a tough spot on this. Selling doesn't sound like it makes sense for you since you'll end up in the hole. The other choice is for one person to keep the house. Since you can't refinance since your mortgage is higher than your home value, one person would have to keep paying the mortgage. You could write out an agreement saying that the person who remains in the home agrees to be responsible for the mortgage and will indemnify and hold the other harmless for the mortgage. It's a tricky situation. If he stays in the house and defaults on the mortgage, the bank is coming after you. A written agreement between the two of like I suggested only would give you the right to take him to court to reimburse you. Another option might be to rent the home and continue to own it as business partners. The rent should would hopefully cover the mortgage and you would jointly own the equity once it built up. Eventually you could sell. Good luck. » Return to top Is selling the only way to release one person from the mortgage? Nancy's Question: Does a house have to be put up for sale in order to get mortgage relief? Brette's Answer: When both spouses have their name on the mortgage there are two options to get it into one person's name. You can sell the house and each take your portion of the equity and buy a new home. Or if one spouse plans to remain in the home, he or she can refinance the home, taking the entire mortgage in his or her name. Some banks will also allow an assumption of the loan in certain instances. You can find out more by reading Divorce Mortgage Options. » Return to top Doesn't a quitclaim deed take my name off the mortgage? Sherry's Question: My husband and I divorced a year ago by filing our own uncontested divorce. We agreed that he would keep the house and give me half of the equity, which he was able to pay by taking out a home equity loan. I signed a quit claim deed, and both of us assumed that my name would automatically be removed from the mortgage. Since our divorce, I found out that my name is still on the mortgage. Even though my ex has been making the payments, I'm worried. Shouldn't the bank have told me that my name was still on the mortgage, and what can I do to protect myself? Brette's Answer: This is a common problem many people face in a divorce. A court order directing division of the equity of the home in no way affects an outstanding mortgage. To change the mortgage, there needs to be an assumption, a re-finance, or a sale. There is no other solution. If your husband was ordered to assume the mortgage, it was his responsibility to take care of this. Should he fail to make mortgage payments and if the bank should come after you, your recourse would be to take him back to court to compensate you for what you were forced to pay the mortgage company. The bank had no responsibility to explain the situation to you - this is why you need a lawyer in a divorce. » Return to top Should I sign a quit claim deed if my name is still on the mortgage? Tanya's Question: My divorce was final almost 8 months ago, but we still own a home together. According to the settlement, we are both responsible for the mortgage until the house sells. My ex said he will try to refinance, but he probably won't be approved due to the amount owed and he can't afford it on his own. We have not done a quit claim deed. Is this a good or bad idea based on the fact I'm still on the mortgage? Do I have any legal rights to demand rent? Brette's Answer: Do not sign a quit claim deed! By doing so you give your ownership rights in the property! If he wants to refinance, you're going to have to come to settlement about this. If you just sign over your rights and let him refinance, he owns the entire home and you get nothing. If the plan was to sell and split the proceeds, you would have gotten some cash. Rent is an option. Topic: How can I get my name removed from the mortgage? Daphne's Question: I am going to be seeking a divorce soon from my husband but I don't want to fight him for the home. Is there any way to get my name off the mortgage with out him having to refinance it? Brette's Answer: In short, no. A mortgage is an agreement between you and the bank. The only way to get your name off the mortgage is to sell the property, have the mortgage refinanced, or have him assume the loan. You could sell to your spouse, but he would then need to get a brand new mortgage - or pay off the mortgage. » Return to top Topic: Do I have to take his name off the mortgage? Cheri's Question: In our divorce, I received the house and my husband gave me a quit claim deed for his portion. To refinance the loan would increase the interest rate and I would have to pay $5000 in closing costs. Do I have to refinance the loan, or can his name just be removed? Brette's Answer: You can ask if the bank will take his name off, but they have no incentive to do so. The other option is to leave his name on it if he doesn't object. His ownership interest is gone since he gave you the quitclaim, so that's not a concern. If neither of these options will work, you have to refinance. How do I take his name off the mortgage? Diana's Question: In the divorce decree he was supposed to put the house on the market and maintain the payments until it sold for an agreed upon amount. He made one payment, let it go into foreclosure, and then moved out of state! I contacted the mortgage company and explained the situation. They agreed to work with me and I paid a substantial amount to pull it out of foreclosure. I have been living in the house for over a year now, what can I do to get his name off of the mortgage if I can't find him? What can I do? Brette's Answer: Go back to court to get the decree modified. Getting his name off the mortgage is another problem. You can try to get your lender to make the change, but they are often not cooperative. If they won't, you can refinance. Topic: What can I do if he didn't take my name off the mortgage? Debbie's Question: I signed a quit claim deed for the house my husband kept in the divorce. Since then, he has transferred ownership of the house to his girlfriend. The mortgage for that house is held jointly in both of our names. The divorce decree states that I am not responsible for the mortgage on that house. Am I responsible? Now that she holds the property, is there any way that I can force him or her to refinance the original mortgage. Brette's Answer: Since he was ordered to take you off the mortgage, he has to do that. Particularly since he has passed the property to someone else, the court is not going to be happy that he has not done so. You would have to go back to court on a violation. Topic: Can me make me take his name off the mortgage? Annette's Question: I am divorced and the house was given to me. I have been unemployed and payments have gotten behind. My ex's name is still on the mortgage. He has filed suit against me to give the house up or have his name taken off, but I have no financial means to do either. What kind of determination will the judge make? Brette's Answer: I'm sorry to hear you're having a difficult time financially. If you were ordered to get your ex's name off the mortgage, or if the court said that you were to bear all financial burden for the house, you are in a bad spot. You might want to talk to a bankruptcy attorney to consider your options there. Another option is to sell the home or let the bank foreclose. You can have a realtor come in and give you an estimate of what your home would sell for. If you sell, there may be cash remaining after the mortgage payments are taken care of, but the question then will be if you can find someplace else to live that will fit in your budget. Are you receiving child support or spousal support? You may also want to check with your local social services department to determine if you qualify for any type of assistance. » Return to top Can he default on the mortgage before the divorce is finalized? Linda's Question: I am in the process of a divorce, and my soon to be ex husband is living in our house and I have moved into an apartment. He is leaving me voice messages threatening to basically leave me in financial ruin. He states that he is going to stop making mortgage payments so that when the bank forecloses, he will have someone buy our house and he will pay them, at 10 cents on the dollar. Is this legal? Can't the courts step in at this point. Brette's Answer: First off, you need to talk to an attorney. If he stops making mortgage payments it will hurt both of you. Additionally if he fails to keep up a marital asset such as the home, a judge will look very poorly upon that behavior. You should also know that a mortgage foreclosure process is a very long drawn out process. It takes many months. Should he stop making payments, there is plenty of time for your attorney to get to court to get an order directing him to make those payments. Get an attorney and go from there. » Return to top Am I held responsible if he defaults on the mortgage? Jackie's Question: In the divorce decree, it states that I am to sign a quick claim deed over to him and he is to be responsible for the house, mortgage, taxes, etc. If he defaults on mortgage, will I be responsible to pay for it? Brette's Answer: The only way you change your liability for the mortgage is to have him refinance it in his name alone. As long as your name is on the mortgage, you are legally responsible to the bank. You should talk to an attorney so that you can get complete legal advice about what exactly your divorce decree says and means. Good luck. » Return to top What can I do if he defaults on the mortgage? Linda's Question: My husband was awarded the house in our divorce, but he threw away the quick claim deed and has not made a mortgage payment in over 5 years. I can't get him to sell or refinance, and my credit is getting worse by the minute. What can I do? Brette's Answer: The deed should have been filed with the county. Even so, it has no impact on the mortgage, which is a separate legal problem. It sounds like you need to go back to court for a violation since he is not following court orders. Talk to your attorney. » Return to top Do I have to refinance if it wasn't in the divorce? Heather's Question: In my divorce it does not state that I have to refinance my home. It states I have to pay within 60 days of due date, I am responsible for taxes, insurance, etc. My ex wants his name off of the mortgage and the mortgage company says I have to refinance to do so. Can he force me to do this since it was not in the divorce? Brette's Answer: No. If it is not in the decree, it is not something you are required to do. He could go back and ask for a modification of the order however. » Return to top Can I make him refinance the mortgage? Linda's Question: Our separation agreement includes the following language: "The Husband shall be responsible for all costs related to the Home, including, but not limited to mortgage, taxes, insurance, maintenance and repairs and shall indemnify the Wife and hold her harmless as to any liabilities thereon." If my name is still on the mortgage, can I force my husband to refinance? Brette's Answer: It is difficult to force someone to refinance because it's up to the bank whether he qualifies for a loan. What indemnification means is that if he fails to pay and the bank comes after you, you can in turn sue him for the costs you face. It's not a perfect situation. How does it affect our divorce if the lender refuses to refinance? Nadia's Question: Part of our divorce agreement is based on the fact that my husband's name needs to be removed from mortgage. Unfortunately, the bank has refused to refinance. In what way does this affect the rest of our agreement? Brette's Answer: It doesn't affect the agreement, unless one of you wants to return to court to have it modified based on the situation with the bank. Is there a downside of my fiancé buying the house if I can't refinance? Cathy's Question: My divorce decree stated that I must refinance the mortgage on the family home to remove my ex-husband's name by a certain date. I can not refinance that quickly due to an upside-down equity situation, but my lender said that I should sell the house to my current fiance instead. He qualifies, my kids would get to stay in their home, and my ex would be free of the financial liability. Is there a downside of this scenario? Brette's Answer: The downside is your fiance would own the house, not you. If you break up it would be complicated to unwind since this would be considered separate property for him. Topic: What can I do if he didn't refinance the house? Wendy's Question: My ex-husband was court ordered to refinance the marital home and assume all financial responsibilities of the home, and he says he says he has no intention of doing so. I think the problem is that his credit is poor and the home will not appraise for the amount of the original loan. I went to an attorney and he said "you're screwed because a judge cannot force someone to refinance". If that is the case, then how can a judgment have no legal standing? Brette's Answer: The problem is that the judge can say he has to refinance, but the judge cannot force a bank to give him a loan. Therefore the judge can't force it to happen. The judge has jurisdiction over your ex (not any banks) and you can go back to court and have him held in contempt, but if he has credit so bad that he doesn't qualify, there's not much that can be done. » Return to top
Related Articles: Brette Sember is a former family and
matrimonial attorney and mediator, nationally recognized expert, and author of
many books including
The Divorce Organizer & Planner,
No-Fight Divorce, and
How To Parent With Your Ex.
This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce
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