Taking Your Spouse Off Your Mortgage in Divorce

By
Industry Observer

Keeping the family home when going through a divorce is a big decision (selling the house may be an

even bigger one). If you still have a mortgage, you will be assuming responsibility for the loan and may

want to consider removing your spouse from the mortgage.  Also, taking your ex off will help ensure

they do not profit if and when you sell the house (or inherit it should you die).  

 

There are, however, a number of steps that must be taken in order to remove your spouse, all intended

to protect both your spouse and the lending institution. 

 

Apply for a Loan To Refinance Your Home (In Your Name Only)

 

Even if you and your spouse agree that you will be responsible for the mortgage, until you refinance in

your name, they can come after your spouse for repayment should you default.  Of course, you must

have a qualifying credit score and income (including spousal support payments) to qualify.  Keep in

mind that in community property states (including California) lenders can consider your spouses

credit and debts when evaluating a loan. 


Execute a Quitclaim Deed

 

Upon approval of your refinancing, you should file a quitclaim deed in order to remove your spouse

from the property deed along with the Mortgage.  California requires that all quitclaims be notarized,

typically the lender who is handling your refinance will be able to do this.  Once it is approved, your

spouse will effectively be removed from the deed as well as the mortgage.  



It is important to note that this must be agreed upon by both spouses.  According to San Diego family

attorney David Wilkinson, "if one spouse secures an advantage in the transaction, there is a presumption

that undue influence occurred.  If undue influence is presumed, the advantaged spouse has to prove t

hat the other spouse acted freely, voluntarily and with full knowledge of all the facts and understood

the effect of the transaction."  

 

It should go without saying that a quitclaim cannot be used to trick a spouse into forfeiting their stake in

community property. 

 

Not An Easy Process

 

 

As with many legal matters, this process is not easy and often comes with many confusing and

meandering turns.  It is always recommended that you, at the very least, consult with an attorney or

other expert before moving forward with any plans.  

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