Key takeaways
- If you obtained a joint mortgage with your ex, both of you are responsible for the debt.
- Divorcing couples with a joint mortgage typically opt to sell the marital home, refinance the mortgage to a new loan in one spouse's name or have one party buy out the other.
- Ultimately, your divorce agreement should cover all possible scenarios to protect both parties from credit and financial harm.
One of the biggest decisions divorcing couples face is what to do with the marital home. If you’re in this situation, your options might depend on how the home is financed and titled, among other factors. Here’s everything you need to know about how divorce impacts your mortgage.
What happens to a mortgage after divorce?
If both parties signed the mortgage documents, then both remain on the hook for the debt, even after a divorce. That’s why former couples often decide to sell the marital home and pay off the mortgage.
If you opt to keep the house, you also keep the mortgage. You could continue to own the property jointly under the terms of the mortgage you took while married. Many couples instead go through the process of reassigning title and responsibility for the mortgage to just one of the former spouses.
Mortgage options in a divorce
Depending on the details of your mortgage, the circ*mstances of your divorce and other variables, your options might be limited. Here’s an overview of all possible next steps:
1. Sell your home
Often the easiest way to address the marital home is to sell it and split the profits. Depending on where you are in the divorce process, you might agree to sell the home while the case is still pending rather than after it’s settled.
If you go this route — and many couples do — consider the costs. These might include the Realtor’s commission, the costs of repairs or staging, property transfer taxes and capital gains taxes. These expenses typically come out of the proceeds of the sale.
2. Refinance your mortgage
Some divorcing couples with a joint mortgage decide to refinance to a new mortgage in only one of the spouse’s names. This releases a spouse from responsibility for that mortgage when their name is removed from the loan.
However, unless that partner’s name is also removed from the title, they can still benefit from the sale and equity in the home. It’s important to not only refinance but also update the house title to reflect one owner. When only one spouse is on the mortgage but both are on the title, you’ll need a quitclaim deed to remove one spouse’s name from the title.
Keep in mind: The spouse applying for the refinance can use only their own income and credit score to qualify, says Jeremy Runnels, CFP, of West Coast Financial in Santa Barbara, California. Depending on current refinance rates, you could get a much higher rate on the new loan, as well.
“The lender is going to look at the individual and make sure they’re OK having them as the sole guarantor,” says Runnels.
If a partner will receive spousal support, they can use that income to qualify for a refinance as long as the divorce settlement stipulates that they will receive the support for at least three years, says Runnels.
If the couple has equity in the home, the spouse keeping the house could alternatively apply for a cash-out refinance to pay their ex-partner their share (more on that below).
3. Pay your ex for their share of equity
Let’s say your home is worth $300,000, and you owe $200,000 on the joint mortgage. In this case, you’d have $100,000 in equity, so you’d need $50,000 to buy out the other spouse’s share (assuming a 50/50 split).
To get the cash, you could refinance into a $250,000 loan in your name only, and use the $50,000 cash payout to settle up with your ex.
You’ll need to qualify for the refinance, however.
“Their income needs to be high enough to handle the new mortgage on their own, and the home must have the equity in it to take the cash out,” says Michael Becker, loan originator and sales manager at the Baltimore retail branch of Sierra Pacific Mortgage. “FHA and conventional cash-out refinances are capped at 80 percent loan-to-value, while you can go to 100 percent on a VA loan.”
If you want to keep the house and don’t have enough equity to do a cash-out refinance or the money to pay your ex their share, the solution might be a home equity line of credit (HELOC) or home equity loan.
“You could look at doing either a home equity loan or a home equity line of credit, as some lenders will allow you to go to 95 to 100 percent of the value of your home,” says Becker.
What to consider
Deciding what to do with the marital home can get messy. Before diving into any particular course of action, consider the long-term impacts on your finances:
Evaluating your home equity
Whether you plan to refinance the joint mortgage or sell the home, you’ll need a professional appraisal report to determine it’s worth and any equity you might walk away with.
Sometimes, however, a couple doesn’t agree on the appraised value. This can cripple efforts to move forward and can mean spending more time and money on attorneys and appraisers. In this situation, it’s best for the parties to strive to agree on which appraiser to work with and to accept the outcome of the valuation, whatever it might be.
If you are selling the home, you might decide to split the equity (less closing costs and any repairs and improvements) or use it to pay off other debts you accrued together. Likewise, some couples include a provision in their separation agreement that they’ll accept the first offer on a home, provided it’s within a certain percentage of the list price.
Tax implications
Whether you sell the home as part of the divorce agreement or buy out your spouse’s share, capital gains taxes could come into play. This is a tax on the sale of capital assets, such as a home, when the profit exceeds a certain amount.
If you sell the home, you and your spouse might be able to deduct up to $250,000 of gain each from your federal taxable income, but it applies only to the primary residence you’ve lived in for at least two of the last five years prior to the sale.
There are also tax considerations regarding spousal support payments. The spouse who earns a higher income and pays spousal support can’t deduct those payments from their taxable income, but the spouse receiving the support does not have to declare it as income.
The higher-earning spouse could make a case for paying less spousal support, which can lower the receiving spouse’s income to qualify for a new loan, says Runnels.
Conversely, spousal support payments might hurt the payer’s income and chances for a mortgage.
Protecting your credit
Divorce is an emotional, often volatile event — but the worst thing divorcing couples can do is take financial revenge.
“Many times, out of bitterness, I’ve seen one or both spouses ruin the credit of the other spouse,” says Becker. “They decide that it’s the other person’s problem and refuse to pay bills that may be joint accounts. This can damage your credit greatly and keep you from being able to qualify for any mortgage for a long time.”
The bottom line: Keep paying all of your bills through the divorce process to protect your credit.
“Close your joint accounts and get your own accounts set up,” says Runnels. “If you’re arguing with your spouse over who is going to pay a bill, and you get a ding on your credit, it’s going to be harder to get a loan.”
FAQ about divorce and mortgages
Even if you plan to hold onto the house and pay the marital mortgage yourself, the names on the loan are ultimately the ones responsible for paying it — including your ex.
If for some reason you can’t pay the mortgage, your ex could refuse to pay it, damaging both of your credit scores and making it harder for you both to qualify for another loan. It’ll also be much more challenging to sell, gift or bequeath the home because your ex could claim some ownership of the property.In general, it’s best to take your ex’s name off the mortgage and move forward with your own, new loan.
It’s important to inform your mortgage lender or servicer of your divorce. This could help you avoid delinquency issues if your ex decides to stop paying the loan before the divorce agreement is finalized.
This unpleasant possibility means contacting your divorce attorney, as well as pleading your case to your mortgage servicer and possibly to the judge in your divorce. Communicate with your servicer as soon as possible and provide any relevant documentation, such as a divorce decree showing which party is responsible for mortgage payments.
