How do I get my name removed from a 2nd mortgage after divorce?

Asked almost 3 years ago - Southgate, MI

The court judgment in my divorce said my ex-husband was to assume liability of all property and loans. When I called the bank to have my name removed according to the court judgment, they said the loan 'trumps' the court judgment, and that in order to have my name removed he will have to refinance or pay off the loan. He has bad credit and no money. I've been told I have to sue him or the bank. Is this true? Any suggestions?

I got divorced in April 2011. My ex-spouse was to assume responsibility of the mortgage and 2nd mortgage. My name is not on the 1st mortgage, but both our names are on the 2nd mortgage.

Additional information

Thank you all for your quick and helpful replies! I have another stumper. The 2nd mortgage is a revolving line of credit, you can borrow against if there is monies available. Since my name is still on the account, can I withdraw from the funds available? What I'm thinking is that when he realizes I still can withdraw money, it will make him want to get my name off ASAP.

With this being said, he was late for November and December. There was a couple thousand available. I paid the payments to bring the account current because it is affecting my credit, then withdrew the amount of the payment I just made along with a couple extra hundred. I normally don't like to do things like this, but his games are non-stop and very exhausting.

Thank you again. I have the motion papers filled out and ready to go file, but don't want anything to backfire.

On a side note, he is behind thousands of dollars in his alimony payments, and I just took him to court in December to enforce payment. Ugggghhhh.

Attorney answers (3)

  1. Henry S. Gornbein

    Pro

    Contributor Level 16

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    Answered . A divorce judgment is between a husband and wife. Mortgages and other debts involve third parties. They are not parties to or bound by the divorce judgment. In your situation, your only relief is by taking your former husband to court to have him remove your name from the mortgage. The problem is that if his credit is bad, even if he tries, he will not be able to remove his name because the bank will want as much security as possible regarding the 2nd mortgage. There is nothing that you can do against the bank. Good luck to you.

    Henry Gornbein

  2. Christine Marie Heckler

    Contributor Level 16

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    Lawyers agree

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    Answered . The bank is correct. The court that issued your divorce had no authority to alter the contract (i.e. promissory note or mortgage) between you and your bank. Therefore, your ex-husband must refinance the loan in his own name in order to remove you from the promissory note or the mortgage. You cannot sue the bank. However, if your husband refuses to refinance or is unable to do so, you can file a motion for contempt of court against him and request that he pay you if his failure is causing you damages (e.g. impaired credit or a deficiency judgment).

    DISCLAIMER: This answer is provided as general information, which may not be appropriate for the specific facts of... more
  3. Peter L. Conway

    Contributor Level 17

    Answered . There is a difference between being ordered to assume responsibility and being ordered to refinance or take some other step to end a person's liability for a mortgage. Generally, refinancing or paying off the loan are the only way to cut off your liability. There is also a "novation" but banks will seldom agree to grant one. Note that your ex is responsible for servicing the two mortgages, but you may find that your continuing theoretical liability prevents you from obtaining your own mortgage on an new house.

    If you had a lawyer for your divorce, discuss this with the lawyer. If you did not, you may want to consult one so you know your options.

    You should not rely on this answer. You should consult a lawyer so you can tell the lawyer the entire situation... more
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