Ask A Lawyer: Can I Get My Name Off Of The Mortgage?
The house the children are living is still in my name. My spouse has remarried. How do I get my name off the mortgage? There was nothing in the divorce stating either of us got the house.
As you advise that your name is on the mortgage for the house, it would follow that your name is also on the title (deed) to the house. As the divorce did not address the house, presumably you have not voluntarily signed over the house to your ex-wife and remain an owner (or sole owner) of the house.
Unless you were divorced under circumstances where the divorce court did not have jurisdiction to address the house, such as one party did not participate in the divorce or the divorce was entered in a state different than the state in which the house is located, the divorce judgment should have addressed the house in some manner, either as marital property to be divided/awarded or as non-marital property of one of the parties. You should be able to re-open the divorce judgment to address the ownership or transfer of the house and assumption of the mortgage, or to require the sale of the house. You may wish to contact your attorney in the divorce to find out why the house was not addressed in the judgment or retain other qualified family law counsel to review your court documents to ascertain the next steps as to correcting the divorce judgment.
If the house is just in your name and was not awarded in the divorce, it is quite curious why your wife is still in possession of the house. In this case you may have an option to
evict your ex-spouse or sell the house. If the house is in both your names and modification of the divorce judgment is not an option or advisable, you may have rights under the real estate laws of your state to force possession, a sale, or a refinance of the property depending upon the exact legal title to the property.
As to removing your name from the mortgage, the lender may agree to release you from the mortgage assuming your ex-wife would remain on the mortgage and is financially stable, although most lenders prefer to keep both parties on the note to assure payment. Your ex-wife would have to join in your application to be released from the mortgage if the lender is willing to consider that option. Otherwise, the debt would have to be refinanced to transfer the debt to your wife and remove you from the debt.
Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.
Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues.Source: dadsdivorce.com