Attorney Deanne Koll explains the lender’s obligations when a borrower gets divorced and comes to an agreement with his or her ex-spouse in the divorce.
Disclaimer: This video is designed to be educational and informative, but it is not legal advice. Collection law is constantly evolving and subject to change. Each situation is unique, and each case should be addressed to fit the unique situation.
It is not uncommon for a recently divorced borrower to tell their lender, “Hey, I want to get my ex-wife or ex-husband off the loan I have with you.” The typical reason for the borrower’s demand is an agreement the borrower made with his or her former spouse in the divorce action.
In a divorce, one party usually accepts responsibility for a debt. That party then, customarily, agrees to a “hold harmless” clause within the divorce agreement.
The hold harmless clause essentially says that, if the responsible party defaults on the assigned debt and the lender comes to the non-responsible party for payment, the responsible party will “hold the non-responsible party harmless” from any damages (meaning money) paid.
Additionally, after a divorce, if the non-responsible party remains responsible on the loans—at least on paper—and those loans or obligations continue to show on his or her credit report, which can make obtaining future credit difficult.
So, when the borrower comes to you and asks that you take the ex-husband or wife off the loan, what do you do? The lender is under no responsibility to remove the ex-spouse.
While the spouses may have agreed between each other who would be responsible for the debt, the lender’s rights to collect from either spouse are unaffected. In short, the divorce agreement does not bind the lender.
If collection efforts would ever need to commence on the debt, the lender could seek recovery from either or both spouses. The non-obligated spouse’s recourse is against the spouse who agreed to take the debt, not the lender.
In summary, when a borrower gets divorced and comes to an agreement with his or her ex-spouse in the divorce, the lender is not obligated to play along, but may choose to do so if it so pleases.