Divorce and Mortgage Questions

The answers to the divorce and mortgage questions below can help you be aware of your options concerning the family home and who will be held liable for the monthly payments. Find out who is ultimately responsible for the mortgage, what is required to get your name off the original loan, what happens when a spouse defaults on the mortgage, and more.

Names on the mortgage:

 Mortgage payments:

Mortgage responsibility:

Selling a house with a mortgage:

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Name on the Mortgage

Is the mortgage a marital debt even if it's only in my name?

Carly's Question: My husband and I bought a house together before we got married with both of our names on the title. The original mortgage was in my name and I refinanced it after we were married. Is the mortgage now considered 'marital debt' instead of 'separate debt' so we would both be responsible for splitting it in the event of divorce?

Brette's Answer: The mortgage is marital debt as long as you are married and not separated.

Can I still get divorced if we own a home together?

Becky's Question: I've been separated for a year and a half, and my husband and I own a home together. I have told him he can have the house, but he can't get approved for the mortgage in his own name at this time. Can I get a divorce while the house is listed in both our names?

Brette's Answer: Yes. The divorce decree can specify what will happen with the home in the future.

How do I find out if my husband took out a loan on the house?

Gee's Question: How do I find out if my husband has secured a loan on my house? The property is solely in my name.

Brette's Answer: You can check with the county clerk's office to see if a mortgage has been recorded on the property.

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. Will signing a quitclaim deed or having him refinance accomplish this?

Brette's Answer: The deed and the mortgage are two different things. The only surefire means to accomplish this is to have the deed transferred to him and a new loan taken out in his name. The mortgage however, is up to the bank. You should discuss this with your lawyer.

Should I keep the mortgage in my name if he keeps the house?

Debbie Asks: We're getting a divorce and he wants the house. He will be making all the payments, but wants to keep my name on the mortgage for at least a year after we get divorced. 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 is finalized?

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 speak with an attorney before agreeing to anything.

How do I give him rights to the home if my name is on the loan?

Penelope's Question: I moved out of our home 1 year ago. My husband has paid the mortgage that is in my name only. He is on deed. He is self-employed and can't get refinanced, my loan is not assumable, and I trust that he will continue to pay the mortgage. In order to complete the divorce immediately, how can I give him the rights to the home? My only concern is being able to get another mortgage for myself if my name is still on that mortgage.

Brette's Answer: I think you need to be very careful about what you're planning. It is unlikely you'll be able to get another mortgage and if he does not qualify, he will not be able to take on a mortgage himself. You can quitclaim the property to him with a deed but you'll still be responsible for the mortgage.

How can I get my name removed from the mortgage?

Debbie's Question: I'm going to be filing for a divorce, but I don't want to fight my husband for the home. Is there any way to get my name off the mortgage without 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.

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 to get his name removed.

How do I take his name off the mortgage?

Diana's Question: According to the terms of out divorce, he was supposed to put the home up for sale and make the mortgage 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, how do I get him off the mortgage if I can't find him?

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.

What recourse does she have if she's still on the house loan?

Eileen's Question: My daughter was divorced 5 years ago. Her husband was granted title to 2 homes with mortgages on both. My daughter was granted a vacation home, which has no mortgage. She found out recently her name is still on the 2 mortgages, even though her name is not on the deed. What recourse does she have?

Brette's Answer: Seek to modify or clarify the divorce order to specify he has to refinance or indemnify her for the mortgages.

Am I liable for the mortgage if he didn't comply with the decree?

Debbie: I signed a quitclaim 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 for the violation of your decree.

What if the bank won't allow my name to be removed from the mortgage?

Dianne's Question: My decree states that if my ex modifies the loan on our marital house, my name would have to be removed and I would not be liable for the debt. The bank is denying a modification because they do not want to take my name off the loan. Is this allowed legally since no other reason was given to deny my ex the modification? What can we do to try to get a modification but not have me on the loan?

Brette's Answer: It is completely up to the bank if they will remove your name. The best way to do so is for your ex to refinance the mortgage.

Topic: Can he 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's 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.

Doesn't a quitclaim deed take my name off the mortgage?

Sherry Asks: We 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 I'm still listed 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 how do I protect myself now?

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

Mortgage Payments

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 says if I leave he won't pay the mortgage payments and he won't move out either. My name is on the mortgage and I don't want to lose my credit. Is there some form he would have to sign to keep up with the mortgage so I could move out?

Brette Answers: 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 its 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 receiving the home in the divorce? If not, can I go back on my taxes and revise them?

Brette Answers: Your attorney can help determine if the payments were designated as alimony or property settlement. Alimony is taxable; property settlement is not. Good luck.

Can I use the excess if he deposits more than the mortgage payment?

Donna Asks: My ex-husband and I had a joint checking account, into which he deposited money to pay for the mortgage. Every month there was an excess between $120 and $180 which I withdrew to pay bills when I was short. Is this illegal?

Brette's Answer: If the court order specifically says the money is to be used just for the mortgage, you would owe him the amount you used for other purposes.

Am I liable for half the mortgage payment I'm not on the loan?

Jill's Question: I am getting a divorce and have moved out of our house. 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 save money by not using an attorney). He also wants me to pay him half if the house doesn't sell in a timely manner. 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 consultation or two so that you could find out how a court would rule in your case and you can then negotiate from a place of knowledge.

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 any money toward the payoff. I paid off the entire mortgage myself. We're getting divorced 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 provide 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. » Return to top

Mortgage responsibility

Am I liable if the decree states he is responsible for the mortgage?

Lorna's Question: In my divorce 3 years ago, I was awarded the house and it said that husband was to make payments and hold wife harmless therefrom. He wants me to refinance the house so I could start paying the mortgage. If he decided to stop paying the payments, would I be held liable? The loan is in both our names. Could the bank come after me even though the decree states that he is the financially responsible one?

Brette's Answer: The bank can come after you, but you in turn could sue him. Be aware that the house can be sold via short sale by the mortgage company if the payments aren't made. And you could be liable for the difference between the sale price and what you owe.

What does "husband shall hold the wife harmless and indemnify her from any liability thereon" mean?

Pamela's Question: What exactly is meant by "husband shall hold the wife harmless and indemnify her from any liability thereon" when referring to the wife moving out of the marital residence and husband retaining it in the divorce settlement?

Brette's Answer: This phrase usually applies to the mortgage, meaning the spouse who is being told to pay the mortgage is responsible for paying back the other one for any losses (if the house is foreclosed on, he doesn't pay it, etc.).

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.

Can he default on the mortgage before the divorce is finalized?

Linda's Question: I am in the process of a divorce, and he 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 really 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.

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: As long as your name is on the loan, you are legally responsible to the bank. The only way you change your liability for the mortgage is to have him refinance it in his name alone. You should talk to a lawyer so that you can get complete legal advice about what exactly your divorce decree says and means. Good luck.

What 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.

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 should return to court for a violation since he is not following court orders. Talk to your attorney. You want him to have to be solely financially responsible for the mortgage and be liable to reimburse you for costs to you and damage to your credit rating.

Is post-divorce property at risk if he defaults on our old mortgage?

Jo Ann's Question: My ex received our home in the divorce settlement and I signed a quick claim on the property. I tried to pre-qualify for a mortgage and found my debt to income ratio would not allow me to qualify even though I have excellent credit. My attorney told me my ex wasn't required to refinance the mortgage, leaving me stuck and nowhere to live. Having no other choices, I purchased a fixer upper home using money from my 401K. What could happen to my current house if he defaults on the original mortgage that is still in both our names?

Brette's Answer: If you own your current home and remain current on the mortgage it doesn't matter what your ex does with the marital home. No one can come and boot you out of your house even if your credit rating dips.

If he assumes the loan will it free up my credit?

Ashley's Question: If I can get my ex-husband to assume the home loan, will that free up my line of credit?  I don't know legal terms, but what I want is to be able to not have his house tie up all of my credit anymore.

Brette's Answer: If he refinances it and pays it off, yes it will come off of your credit report.

Selling a house with a mortgage

What should we do if we owe more than the house is worth?

Debbie's Question: The loan is under his name but the title is under both our names. He wants me to give up the house to him since there is no value to it. It is actually an upside down loan where we owe more than it is worth. I want to foreclose on it because I feel it is not fair that he would be living in a house and me in an apartment. Is he right to keep the house?

Brette's Answer: You should schedule a consultation with a lawyer to look at your entire financial picture and offer personal advice. As for the house, I understand what you're saying - and it is possible he could get some help from the federal bailout program that would redo the loan. The problem is right now there's nothing to divide. If you sell it, you lose money. You could work out an arrangement whereby your name remains on the house and it is to be sold at a future date and profits split (however this also leaves you liable for the mortgage). You could also investigate the mortgage bailout and do that before the divorce.

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 hopefully cover the mortgage and you would jointly own the equity once it built up. Eventually you could sell. Good luck.

Is selling the only way to release one person from the mortgage?

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 intends to keep the house, he or she can refinance the house and get 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.

Can I sell if his name is on the mortgage but not on the deed?

Kristy's Question: When we divorced 7 years ago, I was awarded the house but my ex wouldn't allow me to remove his name from the mortgage with an assumption loan because he thought I was trying to cheat him. Can I sell the house without him being involved?

Brette's Answer: If his name is not on the deed, then it shouldn't be a problem.

What if the house was deemed a non-asset in the divorce?

Janice's Question: Before our divorce, we filed for bankruptcy and our home was being foreclosed. The divorce decree indicates the house is a non-asset. However, my ex chose to stay there with his girlfriend. She put up some money to appease the mortgage lender and end the foreclosure. The girlfriend has since moved out and the mortgage has not been paid and the home is up for foreclosure again. He refused to sign a quitclaim deed in the past. What are my options if the house wasn't considered a divisible asset in our divorce? And is there any way to get my name off the mortgage?

Brette's Answer: You can't get your name off the mortgage. The deed is completely separate. The only thing you could do is get your divorce decree modified to include and discuss this asset. With that, your spouse could become financially responsible for the mortgage and required to indemnify you for costs. Talk to an attorney. » Return to mortgage questions

Should I sign the quitclaim deed before selling if I'm listed 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-husband says he will try to refinance the loan, but there's a good chance he won't get approved due to the amount owed and he can't afford it on his own. We haven't done a quitclaim deed. Would it be a good or bad idea due to the fact I'm still on the mortgage? Can I legally demand rent?

Brette's Answer: Do not sign a quit claim deed! By doing so you give up 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 so he can refinance, he will then own the entire home and you'll get nothing. If the plan was to sell and split the proceeds, you would have gotten some cash. Rent is an option.

Brette Sember - Legal Expert

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