VTmom,

Taking your husbands name off of your Deed as you say, is a relatively simple process of preparing a new Deed transferring the house from the two of you, to just you. This would generally be done after the final judgment of divorce is entered. This assumes that both you and your husband reach an agreement wherein you get the house or a hearing/trial occurs and the Court decides that you will get the house.

The issue of the mortgage you mention can potentially complicate things a bit. The ideal situation is if you are qualified to refinance the mortgage in your name alone, without your husband. The old mortgage, which is in both of your names, will then be paid-off. Currently, interest rates are low, so this may be a good option.

Obviously I do not know your personal financial situation. But, I can say that in many cases, unfortunately, although the spouses may agree that the wife should keep the house, the wife alone may not have sufficient income to qualify for a mortgage. After divorce this may change if she is receiving alimony. If that is the case, a solution may be to provide a certain amount of time to refinance, say 6-months, after the divorce is finalized.

If alimony will not be paid, or if it is still not sufficient for a mortgage to be obtained, then fewer options exist. The wife that keeps the house may agree, or be ordered, through the divorce, to assume full liability for the mortgage, even though the other husband’s name is still on the mortgage too. This, however, may be little consolation to the husband who may not qualify for a new loan to buy another house, as a result of still being on the old mortgage. In addition, he will know that if his wife fails to pay the mortgage, regardless of what the divorce papers say, his credit will still be damaged or worse.

Remember, the mortgage is an agreement between you and your husband with the bank that lent you the mortgage loan. The divorce court cannot change this agreement with respect to the bank. Unless and until that mortgage is paid-off, both you and your husband are liable in the bank’s eyes and, regardless of what your divorce papers say, the bank can take legal action against both of you if payments are not made.

Another important issue exists that you should be aware of. Almost every mortgage contains what is called an acceleration clause. This clause says, in addition to other things, that if you transfer the Deed to the property (even upon divorce), the lender can make the entire amount of the mortgage loan due and payable immediately. This is in part because; transferring the Deed can complicate a foreclosure. Thus, transferring the property from you and your husband to just you, without paying off the mortgage could (assuming the mortgage loan is in both of your names), theoretically, cause your bank to accelerate the loan. Nevertheless, the practice of transferring the property from two spouses to just one of them, upon divorce, without paying off the old mortgage, has become more common because of financial necessity. Most banks will not check the deed or begin foreclosure unless multiple payments are missed.

The initiative taken for the concern is very serious and needs an attention of everyone. This is the concern which exists in the society and needs to be eliminated from the society as soon as possible
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You need to buy out your spouse’s part of the house. Typically, the amount that is required to buy out the home is half of the fair market value of the home. Additionally, when this method is chosen it is usually required that the home be refinanced. The reason being that the other spouse can be paid, and their name removed from the mortgage.