Can you remove a spouse’s name from an apartment lease if you are in the middle of a divorce?

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Can you remove a spouse’s name from an apartment lease if you are in the middle of a divorce?

My daughter is in the middle of getting a divorce because of her husbands infidelity. The both are signers on a lease for an apartment and he will not move out. He loses his job tomorrow and will not be able to pay any or part of the rent, so he could not stay in the apartment by himself if it were only in his name. Is there a way she can have his name removed from the lease? She can afford it on her own income.

Asked on June 30, 2011 under Real Estate Law, Indiana

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

There are only three ways to remove a party from a lease in a situation like you describe:

1) One is by the consent of the parties to the lease--i.e. if your daughter, landlord, and her soon-to-be ex husband all agree, they can execute a document canceling the old lease and putting in place a new one.

2) If the daughter and husband default on the lease, it is terminated for breach, and then landlord signs a new lease with her. This is *not* recommended except with agreement in advance with the landlord that he won't take legal action against your daughter, since otherwise she'd be exposed to eviction, being sued under the breached lease, damage to credit, etc.

3) In a divorce, the agreement or decree can require him to remove his name, which means that then you'd only need the landlord to agree voluntarily to do this with your daughter, since the now-ex-husband would be obligated to consent to the change.


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