My ex husband and I have been divorced since December of 2007. He lives in our condo with his new wife and makes all of the mortgage payments. Our divorce decree states that I'm not responsible for any part of the mortgage but yet my name still has to stay on the mortgage and both of us want it taken off. Please help
Your mortgage was an agreement between the bank and both you and your ex-husband. Although the court can order your ex-husband to be fully responsible for that debt as a part of your divorce settlement, the court CANNOT change your contract with the bank. Therefore, your name is still on the mortgage and you are still liable to the bank for any nonpayment. That means that if your ex-husband does not pay the mortgage it will hurt both of your credit scores and the bank could pursue legal action against both of you. However, if this happens you could turn around and sue your ex-husband for not following the Judgment of Divorce. You must contact the bank to get your name off the mortgage. Typically the bank will only agree to do this if your ex-husband refinances the property.
DISCLAIMER: This answer is provided as general information, which may not be appropriate for the specific facts of your particular situation. No attorney-client relationship has been established based on this limited communication. You are advised to consult with an attorney in your jurisdiction before taking any action or inaction that may affect your legal rights. www.hecklerlawoffice.com
I am going to assume that you have attempted to discuss this with your former husband and have encouraged him to remove your name from the mortgage. If you have not, please do so. If it is difficult for your to speak with each other, suggest that you meet with a mediator to have this discussion.
You need to know that signing a quit claim deed will only remove your name from the title to the house. It will not remove your name from the mortgage. The mortgage was created when you and he signed a contract with a mortgage company. The contract needs to be changed in order to remove your name.
If he is not willing to voluntarily refinance the mortgage or assume the mortgage, look at your Judgment of Divorce or Settlement Agreement. Does it specifically say that he has to refinance or assume the mortgage or remove your name from the mortgage? Does it give him a specific time frame in which to accomplish this? If no, you may have to wait until he refinances the condo or sells it.
If yes, you can file a motion asking the court to enforce the Judgment and require him to remove you from the mortgage within a certain time period.
These days many homes are worth less than the amount owed on them. If that is the case, he may not be eligible to refinance the home. He can approach the mortgage company about renegotiating the loan for an amount that equals the amount owed on the mortgage. As part of this process, the mortgage company can agree to substitute his new wife for you on the mortgage. There may be documents that you have to sign agreeing to the renegotiation. Make sure that you have someone review them to be certain that you are not recommitting to the same mortgage.
In the event that the Judgment is silent on the requiring him to refinance or assume the mortgage, you still may be eligible to purchase a home of your own, without having this mortgage counted toward your debt. Under Fannie Mae guidelines, if your former husband has been making payments on the mortgage for at least 12 months, then the mortgage company to which you are applying should not count the former home against you. There are also new HUD guidelines that state if your Judgment says that your former husband will hold you harmless from the mortgage on the condo, that this debt should not be counted against you if you apply for a mortgage.
Despite these protections available under federal law, you do not wish to worry about the old mortgage, in the event your former husband does not make all the payments, or defaults. You want to protect your credit. Short of having a requirement in your Judgment or Settlement Agreement, there is no way to force him to remove you name.
However, if there is something that he would like from you in the future, you may consider using the refinance as a bargaining chip.
Since your name is on the mortgage (still), you have every right to contact the mortgage company to find out how you can get your name off the mortgage. Have the divorce judgment ready to send to the mortgage company if they ask for it, to show that he has the condo and that you don't. If the mortgage company insists on a refinance to remove your name, that's what he will have to do. If the judgment is silent on whether he has to refinance, but says he has to remove your name from the mortgage, you should hire an attorney to file a Motion and ask the Judge to force the refinance to get your name off the loan. Good luck.
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