Carroll County Times
Carroll County Times Opinion

Is ex-wife liable for mortgage despite property settlement agreement if transfer deed is never drafted?

A reader has a sadly familiar story: Man and woman marry, decide they are not right for each other, get divorced. If there were no other complicating factors, there would not be a legal question.

A legal question emerges because the couple signed a marital property settlement agreement as part of the divorce. Under the agreement, the husband will keep their house and assume sole liability on the mortgage. He was to have a deed drafted to transfer ownership of the property from the couple to him.


The wife moved out, the husband remained in the house. But he never had a new deed drawn up to transfer ownership, nor assumed sole liability on the mortgage. Several years later, he defaulted on the mortgage.

Is the ex-wife liable for the overdue payments? Short answer: Yes, because her name is still on the deed and mortgage.


The wife could give up her share of ownership of the house by executing a quitclaim deed that would transfer the property solely to her ex. She could do that even if he had failed to have a transfer deed drawn up as agreed in the settlement and he refuses to be present for the deed change. Her presence is needed because she is relinquishing her share of ownership. The recipient's presence is not required.

A quitclaim deed would remove the wife's liability for property taxes from the date the deed is executed. But even after signing the quitclaim deed releasing all interest in the property, she remains liable on the mortgage as long as her name is listed as a borrower.

It is likely to be difficult for the ex-wife to have her name removed from the mortgage. Removal of a name can be done only through a refinance. It would have been easier to refinance in the husband's name alone if both contacted the lender at the time of the divorce.

If the husband has kept up the mortgage payments on his own for the last several years, the lender may agree to refinance. But generally, lenders prefer to have two borrowers rather than one owing on the debt, and if the ex-wife's name is still on the mortgage, the lender will consider her fully responsible for repayment.

So, what can she do? One possible option is to get a new loan in the name of the spouse who is keeping the house. He can use the money to pay off the existing mortgage. The ex-husband is liable on the new loan, but his former wife is released from a debt for property that no longer benefits her. The new loan is usually done at the time of divorce.

If a new loan is not an option and the ex-husband has not kept up the mortgage payments, the ex-wife can turn to the marital property settlement agreement, a legally binding contract. Her ex has breached the contract, and she can go to court asking for specific performance, that is, for the court to order husband to do what he promised to do in the agreement — pay the mortgage.

Donna Engle is a retired Westminster attorney. Reach her with questions or feedback at 410-840-2354 or Her column, which provides legal information but not legal advice, appears on the second and fourth Sunday each month in Life & Times.