How to Remove the Responsibility for Mortgage Payments in a California Divorce
By Beverly Bird
Updated March 17, 2020
David Sacks/Photodisc/Getty Images
When you have a mortgage on a house, you have only two options for getting rid of it: you can refinance it, or you can pay it off outright. Either way, your responsibility ends when the lender gets its money. Both options are possible – and advisable – when you divorce. If your spouse intends to keep the property, he can refinance you out of the mortgage; if neither of you intend to keep it, you can sell it and split the remaining proceeds after the mortgage is paid.
California is a Community Property State
California is a community property state, which means that you and your spouse have an equal interest in any property acquired during the marriage, as well as equal liability for all debts incurred during this time, including your mortgage. Even if your spouse already owned the house before you married, you may be entitled to some portion of its value if you used marital income to pay the mortgage, because your earnings are also community property.
If the mortgage was taken out during your marriage, it’s a joint debt under community property law, even if it’s only in one spouse’s name. To release your obligation under the mortgage, you'll have to sell the property and pay it off, or your spouse will have to refinance you out of the mortgage.
Preservation of Marital Property
California law requires that the marital status quo must be maintained when you file for divorce until your divorce is final. An automatic temporary restraining order goes into effect as soon as one of you files and serves the other with a copy of the paperwork.
This ATRO effectively freezes things in place until issues of property, debts and custody are sorted out. The law preserves the marital home so it can be dealt with fairly as part of the proceedings. You can’t sell the property without the express permission of the court and you can’t further encumber it by taking out a second mortgage or home equity loan against it. You must keep the mortgage payments current, as the court doesn’t want to see the property lost to foreclosure before your marital knot is untied.
Refinancing the Property
If your spouse is keeping the property in the divorce, your responsibility for the mortgage depends on your spouse doing something, not you. He must refinance the existing loan. This typically involves borrowing enough on a new loan to satisfy the old mortgage and pay you your community property share of the equity as well.
The refinance eliminates the old mortgage that you had together, and your responsibility for making the payments likewise ends. In conjunction with the refinance, you would relinquish your ownership interest in the house, typically by signing it over to your soon-to-be ex in a quitclaim deed when he closes on the refinance loan.
Paying Off the Mortgage
If your spouse doesn't refinance, the only other way to relieve yourself of responsibility for the mortgage is to pay the loan off. You and your spouse might agree to sell the property, satisfying the mortgage and sharing in the proceeds. If you have sufficient other assets that you can liquidate, you might want to use the money you get from liquidating those assets to pay off the loan. If your spouse is keeping the home, however, you have the problem of balancing the scale so that you receive something equal in value to your share of the equity, which she would retain. If you would need to liquidate all other assets to pay off the mortgage, this might not be possible.
- Bohm Wildish & Matsen, LLP: Divorce Advice – Who Keeps the House?
- Law Offices of Warren R. Schiell: The Family Home in Divorce
- Beck Law, P.C.: What Happens to the Marital Home in a Divorce?
- California Courts: Dividing Property and Debts in a Divorce
- Bohm Wildish & Matsen, LLP: What are Automatic Temporary Restraining Orders?
- California Courts: Property and Debt
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.