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Divorces Effect On Home Ownership

Ask the Real Estate Lawyer: Real Estate Law Q&A

REM #LAW 741

By Ilyce R. Glink and Samuel J. Tamkin

Summary: When a divorce occurs, several things need to be dealt with concerning the home owned by both parties. Ilyce and Sam help a reader sort through the issues she has with the title of a home and its mortgage.

Q: I am divorced and own a small home in Blue Ridge, GA. My ex-husband fled approximately one year ago and cannot be found.
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The court awarded me our house. I am trying to get his name off of the existing mortgage. How do I do this without paying off the existing mortgage?

A: There are two important issues you need to separate: Ownership of the property and the mortgage that a lender gave to you and your husband. The most important thing for you to do first is to be sure your ex-husband’s name is off of the title to the property.

When you purchased the home, you and your husband took title jointly. Now that you are divorced and the court awarded you title to the home, you may need to have the court go further and have a deed issued by the court conveying your ex-husband’s interest in the home to you. Once you have the court issue the deed, the home will be all yours.

As far as the mortgage is concerned, there were many documents that you and your ex-husband signed when you received a loan from the bank. All of these documents held you and your ex-husband jointly liable for the repayment of the loan that the bank gave you. It is your ex-husband who should want you to refinance the debt and take his name off the loan. From your perspective, if the rate on your loan is better that what you can get in the marketplace today, you should keep the loan as long as possible.

When the rate in the marketplace is lower than the rate you currently have, then at that time you should refinance the loan – you’ll benefit from the lower interest rates and his name would no longer be on the mortgage to the home.

But as long as you get the title transferred to your name only, it doesn’t matter that his name is on the mortgage.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website




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