Can we remove father from mortgage and deed without divorce?

Q: My mother in law is trying to remove her separated husband (my father) from the title of their house. He got kicked out years ago as he cheated on her for 10 years (a child was produced from this indiscretion) He doesn’t want to be on the mortgage anymore but doesn’t want to pay anything on a house that he is not living in. My mother in law doesn’t believe in divorce (old world Italian Catholic) but wants him off the deed. He also wants off. The mortgage has not been paid for in 5 plus years. Is there a way to fix this without Divorce and him not having to pay anything (it is the only way he would sign any type of paperwork, willingly). Could I get on title thru a refinance or something?

A: He can always sign a deed over to her. However, the issues are complicated. If he is on the mortgage with her, the mortgage instrument (contract) may have a due on sale clause which means if there is ever a new deed filed, the mortgage can be foreclosed upon immediately. Most mortgage contracts do not allow a change of the deed. So, drafting a deed from both of them to her, may trigger a foreclosure, or potential problems. However, the fact that the mortgage has not been paid in 5 years may trigger a foreclosure anyway. But, in general, when someone wants off a deed, and there is a mortgage, you should always check with the mortgagee (lender) and see if they will agree to release someone from the deed. Sometimes they will but it really depends. I have had mortgage companies accept a simple assumption of the mortgage but they likely will want to refinance and in either case put the house in the name of someone who has good credit.


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