Can I get a mortgage in my own name if my x husband refuses to come off the deed. He no longer wants to be on the

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Customer: Can I get a mortgage in my own name if my x husband refuses to come off the deed. He no longer wants to be on the mortgage but won't come off the deed till he gets his share of the house.
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: I have the bank trying to see if I qualify on my own. But I won't know till next week. And one bank said I couldn't get a mortgage on my own without having him removed from the deed.
JA: Where is the house located?
Customer: Rothesay, NB
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Is this a free guesting?
Answered by Ulysses101 in 41 mins 2 years ago
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Ulysses101
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Ulysses101, Expert

Thank you for the question. It's an interesting one.

Whether you can get a mortgage solely in your own name, while your ex husband remains on the deed, is up to the lender. It's certainly possible, but I can see that a bank would be nervous about it or want to charge a higher interest rate in this situation. And that's a separate issue from whether you qualify financially on your own.

The bank will want to know if you're joint tenants or tenants in common. If you can borrow against "your own half" then maybe you'll get the mortgage or a line of credit in your name; that's if you're tenants-in-common. However, most married couples are joint tenants, meaning if you die then your spouse (or co-owner) is then the sole title holder and owns the whole thing. Then the bank has a mortgage on the property but no contract with anyone to pay the mortgage.

I can appreciate that your ex wants to be off the mortgage, but he has no right to insist on that in a vacuum. If he's on title to the home then he's still contractually responsible to pay costs associated with that home, including the mortgage, whether he's living there or not.

I hope that answers you, and adds to your deliberations on the topic. I'm here if you wish to discuss this further, or provide more information which would allow me to assist you better.

Customer
Thanks. I'm in a difficult situation.
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Ulysses101, Expert

Yes, I can see that.

Firstly you need to see how much of a mortgage you'd qualify for on your own. If you're preapproved for enough to remortgage the home on your own, and maybe even at a higher amount to buy out your husband's share if you can agree on what that is, then you're good. Borrowing rates are excellent now, of course.

You might well need a family lawyer or mediator to help sort this out. Your husband has to be part of the solution rather than making demands on you to fix it all. Or maybe he doesn't want his equity out of the home?

Thank you for the question, and thank you for using JustAnswer. I'm here if there's more to discuss on this topic.

Uysses

Customer
Oh he wants it!
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Ulysses101, Expert

Then he should be doing more to help sort this out than simply demand that you take him off the mortgage, which by itself is likely impossible.

Customer
He's always been a selfish man, and only cared about money. He did great in Court...he had been earning $180,000. and I was a stay at home mom. Miraculously, the year of our divorce his income went down to $60,000....with him as his own Accountant with his own business. I had to pay for some of his legal bills, got nothing from his company, had to re-pay him $18,000.00 in overpayment of Child support as they realized his income went "way down". Plus now I owe him for his share of the home. I got screwed through the whole thing and still am.
Customer
He also refuses to provide me with Income Tax returns from 2013 - now. He is required to give me those but won't.
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Ulysses101, Expert

He feels like he's teflon now. But he has little defense to not providing ongoing disclosure if ordered to. You could teach him a lesson on that issue, maybe he'll take you seriously in the future.

Customer
I think you're right. But how do I get the copies if he won't give them to me. I'd have to get a lawyer involved and at this point I really can't afford one.
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Ulysses101, Expert

You'd simply send him a copy of the order which tells him to provide it. If you're to provide yours to him, make sure you've done what you're ordered to before trying to throw the book at him.

Then send him a note that's businesslike saying that if you don't get what he's been ordered to provide within 30 days that you'll be investigating a motion for contempt and compelling him to comply.

Keep it civil and businesslike, if he is abusive to obnoxious to you in writing that will help.

IF he doesn't give you the disclosure, then give him another 15 days with the addition that his failure will lead to your bringing a motion for a finding of contempt with no further notice to him. If he misses that deadline, you bring the motion. You can do that yourself, but it has to be done precisely correctly or else it'll be thrown out so get your lawyer's office to help you with just the paperwork. As well, be aware that you'll need a Factum for this motion under the rules, so get them to throw that together for you. A basic factum for this should be easy to assemble, they probably already have a decent precedent.

Customer
Ok. Thank you. I'll see what I can do.
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Ulysses101, Expert

You're welcome!

Good luck and stay safe.

Ulysses

Customer
Thanks. Same to you.
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Ulysses101, Expert

Like any good lawyer, I need to have the last word. If you're the last to write, then the thread stays on my Open list.

So...you're welcome, again!

Customer
I owe him for half of the value of the home at the time of the divorce. However, there was a Mortgage still owing on the house for over $80,000 at that time. Should that not have been taken into consideration for what he is owed? Now I owe him the money in June when my son is done High School and have to add that onto my Mortgage which I don't even know if I'll get approved.
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Ulysses101, Expert

Yes, the half value is the equity in the home, given it's value at the time of separation and the mortgages, liens, debts, and other encumbrances at the time. So the mortgage amount isn't what matters, it's the value of the home minus the amount of the mortgages, lines of credit, etc., which is the equity in the home.

Clearly, you need to go to the bank or to a mortgage broker to see how much mortgage debt you can be approved for and carry in your own name. Then you're doing well if that amount allows you to refinance and buy out your spouse's share of the equity.

Does that make sense? We can discuss it until you're clear if you wish.

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