Release from Mortgage Liability


Dear AleeshaG:

Greetings. First, it is not a “common practice” for a spouse to remain on the mortgage and for the spouse with the house (that rhymes) to not refinance. In fact, the opposite (where the spouse must refinance) is really the norm. It does happen though, especially where the parties are divorcing amicably and the other spouse has a perfect payment record.

BUT…what if the other spouse has an accident and can no longer pay, the house goes into foreclosure? You would have signed a deed, so the property would not be yours to sell, yet you would still owe on the property. So, yes, you are still liable if he does default on the payments.

Finally, no matter the expense, protect yourself by hiring an attorney to at least review the separation agreement with you. It is worth the funds to know that you are getting what you have agreed upon. Thank you.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


Question: My husband is keeping the house and assuming all responsibility for the property. I want my name released from all liability. Our current loan cannot be assumed therefore he must refinance. He’s not wanting to do this if his payment goes up. His attorney said it is a common practice to not refinance - that the settlement agreement would say I’m not responsible for the house, etc. I verified this with several mortgage companies. It’s true - they will give me a loan if I provide them with a copy of the decree stating I’m not responsible for payments. BUT with my name still on the deed of trust, aren’t I still liable should he default on the payments? If he won’t refinance, is there a way to incorporate into the settlement agreement some wording that protects my credit should he miss payments? Is my future screwed if I don’t push the refinance? Thank you for your help!