Differentiating Between Mortgage and Promissory Note in Divorce
So, you’re confused about the difference between a mortgage and a promissory note in the context of your divorce. Hi, I’m Tulsa Dads.Law attorney Clint Hastings. I practice here in Tulsa, Oklahoma. I’ve been practicing for about 25 years, and I focus on fathers’ rights.
Clarifying the Terms
People often get confused because we commonly refer to home payments as mortgage payments. However, a mortgage and a promissory note are two different things. The promissory note with the bank is the actual loan—you’re making payments on that note. The mortgage, on the other hand, is a separate document you (or both you and your spouse) signed to allow the bank to foreclose and force the sale of the property if you default on the loan.
We call it a mortgage payment because the loan—the promissory note—is secured by the mortgage. The mortgage gives the lender the right to foreclose, which is why payments on the note are commonly referred to as mortgage payments.
Importance of Understanding
Here’s where confusion often arises: your name and your spouse’s name may not appear on both documents. For example, your wife may be on the mortgage but not the promissory note if the loan itself was only in your name. But since she had a marital interest in the property, she may have signed the mortgage to give the bank permission to foreclose if payments weren’t made.
This distinction comes up in mediations or court. If terms like mortgage and note are thrown around and you’re unsure why your wife’s name appears on one but not the other, it’s important to clarify this with your lawyer ahead of time. Otherwise, you risk being blindsided at trial when documents are introduced into evidence and questions are asked—and you don’t understand what’s being discussed.
Need Legal Assistance?
Some people already know this distinction well, but in my experience, many do not. To avoid confusion, make sure you understand the difference between a mortgage and a promissory note before you go into court.
I hope this helps. If you have questions about this or other family law matters, give Tulsa men’s divorce attorney Clint Hastings a call at 918-962-0900 and we’ll be glad to help you.
