Sharing marital responsibilities is not always cut and dried. Before taking out that mortgage, meeting with a real estate attorney first will help more than a marriage counselor later. As a general rule, if you both sign the promissory note – a legal promise to pay -- then you are both responsible for the mortgage.
Terms of Responsibility
Whoever signs the promissory note – one of you or both – is as much on the hook for the mortgage before you say “I do” as you are after the champagne toast. The only way to get out of it is to pay off the loan, file for bankruptcy or have the lender forgive the loan – say you borrow the money from your parents and they agree to forgive it upon their death. You can also be responsible for the mortgage without signing the note if you guaranteed the payment; that is, sign a document promising to pay if the borrower doesn’t.
Community Property States
You’ve probably heard of community property – the legal name for “what’s mine is yours – or half of it, anyway.” There are nine community property states in the U.S.: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. If you live in one of these states, only property given to you or that you inherit is considered yours and yours alone. Community property laws reflect a marriage’s partnership so that assets are shared and if necessary, divided equally. However, it can have a similar effect on debts, like a mortgage.
Mortgage Preceding Marriage
If you buy a home before the wedding and are the only one signing the promissory note, you own the home and are the only one responsible for the mortgage. If you pay it off during the marriage and use some of your spouse’s money to pay for it, the question of who then owns the house – you or both of you – is not clear-cut. In some community property states it still belongs to you, but if ownership ever becomes an issue, you may need to reimburse your spouse for any of her money that was used to make payments.
Mortgage During Marriage
If your wife didn’t realize she actually had to pay back that student loan for college, that credit ding could mean higher mortgage payments. So, you get the mortgage in your name only, along with the responsibility for paying it. But, if you live in a community property state, in all likelihood your wife still owns half. This means the lender could only foreclose on your half. Since that doesn’t do the lender any good, it can affect the type of loan you get, or your spouse may need to sign a Deed of Trust at closing. This doesn’t make her responsible for paying it, but it does mean the lender can claim her half, too, if you don’t pay.
- W. Michael Murray, Attorney at Law, Murray & Associates, Austin, Texas
- Total Mortgage Services: FHA Home Loans with a Non-Purchasing Spouse
- IRS: Publication 555 – Community Property
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