By: Ilyce Glink and Samuel Tamkin
Q: My ex-spouse and I own two houses. The separation agreement spells out that I am to be taken off the title to those properties. The two house loans together total approximately $900,000.
My ex-spouse’s attorney gave my attorney a mortgage and promissory note modification agreement. I don’t trust my lawyer and I don’t buy it that this will get these homes off of my credit score. What do you think?
Will this agreement get my name off of the mortgage, deed and clear my credit of any mortgage so I can move on with my life and buy my own home? All I am looking for is a yes or no answer.
A: Thanks for your letter, although we found it quite disturbing. But, let’s start at the top.
The only things you can do to get your name off of the loans (and your credit history) following a divorce is to either pay them off or modify them in a way that will remove your name from the loan.
We can tell you that after a divorce a properly drafted loan modification (by the lender, perhaps working in concert with your attorney) can remove your name from the loan and release you from the legal obligation to repay the debt. We can also tell you that if the separation agreement is only between you and your husband, your name will still be on the mortgage.
It’s pretty simple: the mortgages for the two properties will be tied to your credit for so long as your name is attached to the loan. So, if you want to be released from the loan, read the document, see if it was prepared by your lender and talk to someone you can trust about what it actually says.
Or, make sure that your ex-spouse executes a refinance in exchange for granting a quit claim deed to the properties. If you execute the quit claim deed before receiving assurances that your name has been taken off of the mortgages, you’ll be legally liable for the payments but own none of the underlying asset.
That’s a position you don’t want to be in.
Now, let’s get to the elephant in the room: your lack of trust in your attorney. Your attorney is supposed to provide a measure of security. You’ve got to know your attorney has your back, no matter what happens.
The fact that you don’t trust your attorney and don’t believe what he says (or that he’s looking out for your best interests) is a huge red flag. Your instincts are good, but you need someone you can trust to help you understand these complicated issues.
So, find an attorney you can trust. And as for yes and no answers, we haven’t seen your documents, so we don’t know what you were shown or promised. But if several different attorneys review your documents and all of them come up with the same answers, then you should consider yourself protected and move on.