Removing your name from mortgage loan during/before divorce.

Asked almost 2 years ago - Richmond, VA

In the settlement agreement, wife assumed all responsibilities of mortgage payment etc and asked for a quitclaim that I gave her. The deed is in her name now. We are waiting for divorce hearing. In the meantime, she has put the house on the market without my consent or knowledge (she told me that she was going to refinance, but that is her choice)
When I called the bank to remove my name from the loan, they stated she has to sign some forms to remove my name from the loan. What are my options if she refuses to remove my name.

Attorney answers (4)

  1. Michael David Thomas

    Contributor Level 12

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    Answered . You really need to sit down with an attorney to review your agreement. Was there any reference to refinancing in the agreement? Did it state that you waived your interest in the house?Assuming the responsibility of the mortgage is not the same thing. If your agreement does not require to remove your name, you may have a difficult time removing your name. Please see an attorney to review your agreement to see if there is any way to address this at your final divorce hearing.

  2. Gregory Howard Wiley

    Contributor Level 16

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    Answered . Usually, the spouse needs to refinance to get your name off the mortgage. The divorce decree cannot force a mortgage company to remove and only make one party liable.

  3. Daniel Seth Williams

    Pro

    Contributor Level 18

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    Best Answer
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    Answered . You can have the Court appoint someone for to sign her name and it will be legally binding.

    Attorney Williams practices FAMILY LAW throughout the State of California and may be reached at (831) 233-3558 and... more
  4. Jennifer E Mandell

    Contributor Level 15

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    Answered . As a couple of the previous attorneys have mentioned, your enforcement options in regard to the mortgage depend on what specifically is provided for in the settlement agreement. If it only says that she shall be responsible for the debt obligations on the house (and, at the very least, it also hopefully provides that she will "indemnify and hold harmless" for any losses you may incur as a result of her breach), then there is no re-financing provision TO enforce. If there is a refinancing requirement (which you don't mention in your question), then your recourse would be to seek the court's assistance in enforcing the provisions of your agreement (for which I would strongly recommend obtaining counsel if you do not already have an attorney -- if you do have an attorney, then you should be posing these questions to him/her!).

    Since you have given her quit claim title to the property without requiring a refinancing as a condition precedent, she now owns the property and can do with it whatever she will -- including selling it without your "consent or knowledge". Unless the Quit Claim Deed conveyed something other than a fee simple interest in the property, you have no say in the matter of the sale. This is not to say that you may not have some recourse if she sells the property for less than the current outstanding mortgage -- that issue would be answered by the specific terms contained in your particular settlement agreement. However, as a practical matter, I don't believe that she can short sell the property without the mortgage holder's consent. Additionally, assuming that the current mortgage that you are a co-obligor on is satisfied and extinguished by the sale of the property, your current propblem of still being on the mortgage goes away!

    It sounds like what you need is either: (1) review this issue and your concerns with your current attorney or (2) if you did not have an attorney representing you/assisting in the drafting of the "separation agreement", get one ASAP!

    This response does not create an attorney-client relationship and is intended for general information purposes only.

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