Divorced From the Man but Not From the Mortgage

By Benny L. Kass
Saturday, March 29, 2008

Q: My then-husband and I bought a house in 1995. We divorced in 1999, and, pursuant to our divorce decree, he kept the house and I moved out. We both remarried in 2000. My new husband and I have a new mortgage on our home, after fighting to prove to the lender that my ex has the previous house.

I know my ex has changed something on his mortgage. He was making higher payments for a year after he fell behind a couple of months. I don't know the details because I no longer own the house.

Is there anything I can do to get my name removed from the mortgage so that my ex's late mortgage payments do not affect my credit? I have excellent credit and have written to the credit bureaus, but his late payments keep showing up on my reports.

A: This is a common problem, largely caused by divorce lawyers who do not understand real estate and mortgage law.

As is often the case, you transferred ownership of the house to your former husband, but you remain legally obligated to make the mortgage payments.

That's because when you and your ex-husband bought the house, you both signed two legal documents: a promissory note and a deed of trust.

The note is an IOU. The two of you, jointly and severally, agreed to make the monthly mortgage payments. "Jointly and severally" means that each of you is fully responsible for meeting the terms and conditions of the note. And one of the conditions is that you must make the payments on time every month, or both of you will be in default.

You also signed a deed of trust, which is the mortgage document. It is recorded among the land records where your property is. The deed is the security that the lender needs to extend you the mortgage loan.

You both deeded the property to a trustee selected by your lender, who holds the property in trust. That means that if you ultimately pay off the mortgage, the trustee will release the deed. If you and your ex-husband go into default, the lender has the right to tell the trustee to foreclose on your property.

Although you are no longer married to your ex-husband, your name is still on the note, and the original deed of trust remains in place.

The bottom line is that your divorce lawyer should have required that your ex-husband refinance the existing mortgage within a set time. Appropriate enforcement mechanisms should have been included in your separation agreement, such as requiring that the house be sold if it couldn't be refinanced. If your ex-husband refinances the house, that would completely relieve you of any further obligations under that old promissory note.

So how did you manage to get a loan for the house where you live now, even though you're still legally tied to that other mortgage? Lenders will show a degree of flexibility because your situation is not unique.


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