Divorce Real Estate and Mortgage Journal February 2025

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Divorcing homeowners face a variety of challenges when dividing real property, particularly

when one spouse wishes to retain the marital home. Understanding the legal protections offered

under the Garn-St.

Germain Depository Institutions Act of 1982, the concept of a Legal Simple Transfer

Assumption, and the role of becoming a successor in interest is crucial in these situations. These

provisions, combined with recent amendments by the Consumer Financial Protection Bureau

(CFPB), provide important safeguards and rights to divorcing spouses who need to assume or

manage existing mortgages. A Certified Divorce Lending Professional (CDLP®) can guide

divorcing homeowners through these often complex processes, helping them make informed

decisions about mortgage obligations and access to information. This article will clarify the key

protections and benefits under the Garn-St. Germain Act, the role of a successor in interest, and

how a CDLP® can assist.

Understanding the Garn-St. Germain Act and the Simple Transfer Assumption

The Garn-St. Germain Act protects homeowners from a lender's ability to enforce a due-on-sale

clause in certain situations. Normally, a due-on-sale clause allows a lender to demand full

repayment of a mortgage when ownership of the property changes. However, under Section

341(d) of the Act, specific transfers of ownership are exempt from triggering this clause,

including when a property is transferred between spouses or as part of a divorce settlement.

This means that if one spouse is awarded the marital home in a divorce, they can assume

ownership without the risk of the lender demanding immediate repayment of the mortgage.

This process is called a Legal Simple Transfer Assumption. However, it's important to note that

this type of assumption does not release or change the legal obligation of the original

borrower(s). The original parties on the mortgage remain liable unless a formal qualifying

assumption or refinance is completed.

UNLOCKING PROTECTIONS FOR

DIVORCING HOMEOWNERS

HOW THE GARN-ST. GERMAIN ACT AND SUCCESSOR RIGHTS

SAFEGUARD YOUR MORTGAGE

WRITTEN BY JODY BRUNS, PRESIDENT DIVORCE LENDING ASSOCIATION

05 DIVORCE REAL ESTATE & MORTGAGE JOURNAL

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