Do I Have to Pay the Mortgage While My Wife and I Are Separated? (2024)

FAQs

Do I Have to Pay the Mortgage While My Wife and I Are Separated? ›

Both parties are often still responsible for paying their share of the mortgage, even if one spouse moves out of the house. If you're going through a divorce and have questions about who pays the mortgage, it's important to speak to an experienced family law attorney.

If both names are on the mortgage, both parties remain legally responsible for ensuring the mortgage repayments are made, regardless of who continues to live in the property. It's essential to communicate and come to an agreement on how payments will be handled or consult a divorce lawyer Gold Coast for guidance.

Key takeaways. If you obtained a joint mortgage with your ex, both of you are responsible for the debt. Divorcing couples with a joint mortgage typically opt to sell the marital home, refinance the mortgage to a new loan in one spouse's name or have one party buy out the other.

If one decides to stop paying the mortgage, the other is obligated to make the payments. Failing to pay the loan would lead to default and foreclosure. To avoid future problems, the mortgage needs to be transferred to the partner taking ownership. Lenders sometimes allow this, but often don't.

The process of removing yourself or someone else from a joint mortgage is relatively simple and straightforward—as long as everyone is in agreement and wants the same result.

Even if you and your partner come to an amicable divorce and mortgage agreement, most lenders will not remove a co-borrower from an existing loan. Instead, they require origination of a new loan based on the sole borrower's credit and income. That typically means refinancing.

Depending on the unique circ*mstances of your situation, the court may be able to order the property sold to pay off the mortgage, but this is unlikely if your ex is living in the home. If the divorce court cannot help you, you can sue him in a new lawsuit for the damage that he is causing you.

Doing so without refinancing is possible via mortgage assumption, loan modification or even bankruptcy. However, the process can be limited by lender policies and potentially burdensome for the remaining homeowner.

The most common way to remove someone from a joint mortgage is through refinancing the loan solely in the name of the person who will retain ownership of the property. This process involves obtaining a new mortgage that pays off the existing one, thereby releasing the other party from their obligation.

Does It Matter Whose Name Is on the Mortgage in a Divorce? While the name on the mortgage can influence who is responsible for the debt, it doesn't necessarily dictate how the property is divided.

How do I get out of my mortgage during divorce? ›

You can remove yourself from the mortgage loan in two ways: release and refinance. If you talk to the mortgage company and present them with your divorce decree and a quitclaim deed, many lenders will remove you and leave the loan in your ex's name only.

If you can't afford to refinance, or if both you and your ex-spouse want to keep the marital home, you could choose to co-own the house. While this option is less common, some former couples may keep the home while both covering their share of the mortgage payment.

One easy way to keep the home without refinancing is through a mortgage assumption, where your lender allows you to transfer the mortgage to your name. Lenders are not required to grant mortgage assumptions, even if you and your former spouse agree to one.

Your joint mortgage will not change until you or your partner take action. This could be selling your home and splitting the money, buying out your partner or paying off the mortgage. If you plan to sell the home, both partners need to give written approval before you can put it on the market.

Taking Your Spouse Off Your Mortgage

There is only one way to have your spouse's name removed from the mortgage: You will have to apply for a loan to refinance the mortgage, in your name only. After all, the original mortgage was approved in both of your names, giving the lender two sources of repayment.

If your spouse simply stops making mortgage payments, it's a problem that you should address immediately with your dedicated divorce attorney, who may need to file a motion with the court.