We are upside down on our condo. My husband plans to maintain the residence following our divorce and I am moving. However, nothing can be done to remove my name from the mortgage as we are in no position to refinance. I don't want the property...but I do not want to sign a quit claim deed if I cannot be removed from the mortgage. What is the best optin in this situation. Also, I assume I would receive no compensation for relinquishing right to the property, as there is no equity? Would this issue delay finalizing the divorce?
There are provisions that can be placed in your marital settlement agreement, but I think you really need to speak to an attorney to assist you with this.
I recommend you consult with and hire an experienced attorney to assist you with the process to ensure everything is done properly. At the least, consult with an attorney. Many great attorneys can be found here on Avvo and offer free consultations, myself included.
Orlando Family Law Attorney
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What we do in cases like yours is to have the husband hold you harmless and indemnify you regarding the mortgage. The mortgage company does not have to let you out of the obligation, and they simply will not do that.
R. Jason de Groot, Esq., 386-337-8239
Divorce / Separation Lawyer
In a marital settlement agreement, you would include provisions that your husband is to hold you harmless and indemnify you regarding the mortgage. However, as Mr. Groot already alluded to the fact that these provisions would not insulate you from the mortgage company/lender from seeking any deficiency judgment if your name happens to be on the note and a foreclosure sale does not yield the sufficient funds to cover the outstanding amount owed on the loan. The mortgage, itself, is the instrument that permits the lender (or the owner of the note) to foreclose or take possession of the property in the event of a default. The mortgage is attached to the property you have borrowed money to purchase. Therefore, the mortgage serves as a lien on the property you purchased with the loan. The "note" is instrument that creates the legal obligation to pay back the money that was borrowed and the payment schedule.
NOOOO you do not want to sign a quit claim deed if you are going to remain on the mortgage. The condo is your security for what you owe. You should get an agreement for the Husband to pay the mortgage and all carrying charges, taxes insurance, upkeep etc. This should be clearly spelled out in an agreement and there should be language to hold you harmless if he does not. This will not protect you against the mortgage company if he defaults, but will give you grounds to counter sue him should anything be entered against the two of you for his default. You should have an agreement to sell the property once it is no longer underwater pursuant to the opinion of a licensed realtor. You then split the net proceeds and husband gets a credit for his mortgage payments and carrying costs.
All answers are based on limited facts provided and should not be relied upon unless there is an attorney/client agreement and I speak with you Personally.
This is a frequent problem in today's real estate market. Perhaps the best that you can hope for is a short sale negotiated with the bank with no deficiency but that is if your husband agrees. Otherwise, you will not be removed from the Note and Mortgage until and unless he refinances or sells the unit. He can put language in the MSA that would hold you harmless but there is no guarantee. You are basically stuck if he defaults. Not an easy choice to make.
Bill Rosenfelt (Orlando) 407-462-8787
Please be advised that any answers or information disseminated above do not constitute legal advice and that the attorney responsible for this posting is merely attempting to participate in a Q & A session intended to be helpful but certainly not intended to be legal advice. It is important that you understand that no attorney-client relationship has been formed and that the attorney has no obligation to follow up with you with your legal issue unless you separately contact said attorney and arrange for him to legally represent you.