The mortgage is just in my name as my ex-wife's credit was too bad for us to finance the loan together, she is on the deed though. Since we divorced she's refused to move out of the house since she's on the deed. I'd like to get her out of the house and off the deed since I'm solely responsible for the mortgage. I'm close to stop paying the mortgage and moving out myself and telling the mortgage company that they can have the house, but I'm underwater.
I'm assuming you owned the home during your marriage. If so, then the home should have been awarded to one or the other. If it wasn't addressed, you can go back to court and seek to have the property awarded to you. If it was awarded to both of you. (look to see if it was specifically, or if the judgement said all other property not awarded to one spouse is awarded to them both as joint owners, or some language similar). Then you are partners with your ex wife. In that case, you would need to file a petition to have the property partitioned. That is basically saying you want the partnership dissolved and the property sold or split. Since the property comes with the debt, the court could award the property to you.
If you deeded the home to her after your divorce for some reason, then again you're looking at a partition action.
If you did the divorce papers yourself, or hired some paralegal to prepare them, you will probably need to hire a lawyer to resolve this. If you had a lawyer who did this for you and they forgot to award the home, you should contact that lawyer and work with them to fix this problem.
The deed is an ownership document and the mortgage is a collateral instrument showing you pledged it as collateral to secure the debt. It would be unusual for the mortgage not to be in her name, otherwise the bank would not have access to the collateral should the loan fail. You may mean that your name solely is on the Note, which is the promise to repay the debt, i.e. the debt document.
Regardless, since she is on the deed, she has ownership rights equal to yours.
The answer provided here does not constitute legal advice and should not be relied on as such. The attorney's response to your question is only offered for informational and educational purposes. No attorney-client relationship has been created. This attorney is licensed to practice in the state of NY only. For real legal advice, a licensed attorney with jurisdiction in your state should be consulted.
Family Law Attorney
You say that you are divorced. Your Divorce Judgment should have addressed the division of property and should dictate which of you has rights to the property and whether you are obligated to continue payments on the house.
The Divorce Judgment cannot change the relationship between you and the creditor because they weren't joined in the action. Whichever of you is awarded the house and assigned the payments, the creditor will still be able to look to you for assurance as long as your name is on the mortgage. In other words, if you are the only one on the mortgage and the court orders your wife to pay the mortgage, although she must pay the mortgage, if she falls behind on payments the creditor may still attempt to hold you responsible.
I would suggest reviewing your judgment to see if it addresses the property. If it does not you should try and consult an attorney for advice specific to your case.
This answer is not intended as legal advice or to create an attorney-client relationship. This information is intended for general informational purposes only and should be used only as a starting point for addressing your legal issues. It is not a substitute for a consultation with an attorney licensed to practice in your jurisdiction about your specific legal issue, and you should not rely upon this information.