Who Gets the Mortgage?

Nor does it matter whose name is on the title, the legal document that shows ownership of a home, said Heather A. Cooper, a divorce lawyer at Cooper Ginsberg Gray in Fairfax.

A common misconception is that getting your name off the title clears your responsibilities, Cooper said. But the two are unrelated. If you take your name off the title, you lose ownership, but as far as the lender is concerned, you're still responsible for the mortgage.

The norm is to not transfer the title until the mortgage is refinanced by the spouse who will retain the property.

But these days, an increasing number of couples never get that far, Cooper said. For some, refinancing a loan can be prohibitively expensive. For others, the refinancing option may not even exist because neither person can qualify for another loan on one income.

"As a result, more couples are having to put their houses on the market and go their separate ways," Cooper said.

For those who own a home together but are not married, the challenges of a split are even more daunting.

That's because the domestic laws that govern a divorce offer protections that are not extended to most unmarried couples, said Jayson Amster, a lawyer in Upper Marlboro who handles divorces.

In many states, the divorce court's goal is to divide property equitably and fairly, Amster said. It's irrelevant who pays the mortgage because the payments are made with "marital money." Even if one spouse did not pay a nickel, the court will divide the property so that each gets a fair share of its value.

"But none of this applies for people who are not married," Amster said. "In that case, you are just two people who can fight out your problems in court like anyone else."

For instance, an owner can file a partition suit, which asks the court to determine what will happen with the property when the co-owners part ways. In such cases, judges often order that the house be sold and any profit split.

"You're not left without a remedy. It's just not as neat and clean as a divorce remedy," said Jamie A. Mastandrea, a lawyer in Burke who handles real estate transactions.

To avoid the many pitfalls, mortgage banker Mark Fegani advises, unmarried people should plan ahead before buying together. His advice applies equally to those in romantic relationships and those buying together for other reasons.