Mortgage Loan in one spouses name

UPDATED: Oct 1, 2022

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Mortgage Loan in one spouses name

My husband and I qualify for a new homeowner mortgage program if we put the loan in my name only and use only my income to meet the requirement.

Am I alone soley responsible for the mortgage should we split up or one of us passes away?

NJ is a communal property state…if his name is not on the deed and the mortgage is in my name only does he have any claim to the house should we split or in case of death?

Asked on February 26, 2018 under Real Estate Law, New Jersey


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

1) In terms of divorcing: yes, he will have a claim, since it is an asset acquired during marriage; a spouse has a claim to any during-marriage assets (since otherwise, it would be too easy to deprive a spouse by putting assets in one name only).
2) In terms of death: if you pass way, he would inherit by intestate succession if there is no will (assuming you are still married when you pass).  If there is a will, the home goes to whomever you willed to, subject to the following (if again, you are still married when you pass): you cannot fully disinherit your spouse in NJ (or most states), and he will be entitled to 1/3 of your total assets when you pass away, regardless of what you wanted.
3) However, you will be SOLELY resonsible for the mortgage. That is because the mortgage is a contract; only the signatories or parties to a contract are obligated under it; if you are the only borrower, you are therefore the only one required to repay.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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