When only one person’s name is on a mortgage but both names are on the deed?

I am considering getting a divorce from my wife. I would really like to keep the house but she has always said she would take the house if we ever divorced. Only my name is on the mortgage but both are on the deed? How would that workout?

Asked on April 29, 2017 under Family Law, Tennessee

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If you are both on the title, you both are owners: she doesn't have a built-in right to take it. If you and she cannot settle the  divorce (e.g. divide property, determine support, assign child custody, if necessary) voluntarily, a court will do it for you. What the court does will depend on the circumstances. As a general rule--but note: each situation is adjudicated based on its own specific facts--if the two of you earn similar amounts and children are not a factor, typically the house will be sold  and the proceeds divided; or if one really wants the house and the other doesn't care as much, the one may get the house, but then get less other money, assets, etc. to compensate (the house becomes a major part of what they get). 
If there are children, the house will probably go to the spouse who has primary custody (so the children don't have to move), and the other will probably pay the mortgage, etc. as part of his/her support obligations, until the children are grown; then it will usually have to be sold.
If there are no children and she did not work but you did, as part of the support you will most likely be ordered to pay her, you will probably have to pay for the home for her for some period of time, while she "gets on her feet," after which, the home will typically be sold.
But these are only general guidelines: the court will look into the specifics of your relationship and finances to determine what is right.


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