Do I need an attorney to remove a mortgage from my name?

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Do I need an attorney to remove a mortgage from my name?

I have been divorced now for 2 years. The courts deemed me as having no rights to our home or equity. They did not give my ex-wife a time period to refinance. She currently refuses to refinance which continues to tie me to the mortgage on the house. What steps do I need to do, in order to get this mortgage out of my name? Do I need an attorney to get this done?

Asked on November 27, 2011 under Family Law, Tennessee

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Unfortunately, your ex was not given a time limit as to when the properly needed to be refinanced by. This would have given you some leverage. At any rate, refinancing is by far the best, and short of an outright sale, the only practical way to get your name removed from the mortgage.

That having been said, there is a legal tool known as a "novation", that could in theory help. However, it is rarely allowed by a mortgagee. With a novation, your lender would agree to have your name removedfrom the mortgage instrument. Typically, when permitted, a novation is accomplished by having the party whose name will remain on the mortgage prove that they have paid the mortgage without the help of the party who wants their name removed. If the remaining party is current and has never been late with payments, the lender may allow them to remove the other's name.  A lender may also allow a novation if the remaining party "buys" the other party's release by making a substantial payment to reduce the principal mortgage balance.

So, in your case if your wife is agreeable, she could ask the lender to remove your name if she can offer proof that she is financially capable of handling the mortgage payments on her own, or if you and she could work out some sort of lump sum payment to the lender. This is a lot of "if's". The fact is that a lender would rather have 2 people liable for a mortgage if possible; this is why mortgage novations are rarely granted.

What you should do now is to consult directly with a local attorney. Perhaps, under state law there is some way that a sale (or refinance) could be forced after a certain period of time in such a situation as yours.


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