Giving up interest does not free you from mortgage obligation

I did an act of donation on my house to my ex-husband. He is going to give me a fixed payment once he refinances the home. Is there a way to get my name off of the mortgage now since I did give him the property?

The short answer is no. The act of donation, which is simply the process of quitclaiming a property from one owner to another, does not change the basic premise that you and your ex-husband signed a promissory note to the lender agreeing to jointly repay a sum of money when you purchased or last refinanced the home.

The lender is not a party to your divorce, is not a party to the act of donation and is not a party if you decide to transfer any or all of your assets to your ex-husband. The lender is a party to the many documents you signed when you took out a loan for that home. You signed a promissory note, mortgage and a whole bunch of other documents when you got that loan. (We’re guessing that your hand might have grown quite tired from all the signing of those documents.)

But in none of the documents that you signed did any one state that if you sold or got rid of the home, the lender would agree to release you from the debt if the lender was not paid. In general, the only way to get your name off the loan to a home is to have the loan paid off. While in some very remote circumstances, you can request that a lender remove your name in your situation, the lender would ordinarily decline to agree unless the home value is far in excess of the loan amount or the lender has a business relationship with the spouse that retains ownership of the home.

The more likely scenario for your situation is that you obtained your loan through normal channels and that loan is now serviced by a big box lender with a secondary mortgage lender like Fannie Mae or Freddie Mac owning the underlying paper. Dealing with a big box lender or Fannie or Freddie means that you would have little chance of having them remove your name from the loan.

As it seems you’ve transferred your ownership of the home to your ex-husband, you will probably have to wait until he refinances to get your name off the loan. If your divorce decree requires him to refinance within a certain time and he has the means and the ability to refinance the home, and he does not, you might have to go back to court to force him to refinance.

We would have preferred for your ex-spouse to have refinanced the property as the same time you executed a quitclaim deed. That way, you would still own the property as collateral for the mortgage.

Ilyce R. Glink’s latest book is “Buy, Close, Move In! Samuel J. Tamkin is a Chicago-based real estate attorney. If you have questions, you can call Ilyce’s radio show (800-972-8255) any Sunday from 11 a.m. to 1 p.m. Contact Ilyce and Sam through her Web site,


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