The deed, decree and debt all intersect during divorce yet all three need to be dealt with separately in the settlement process.
When transferring ownership of the marital home from jointly held ownership or from sole ownership to the other spouse, using the correct transfer deed is important for protecting the new sole owner. A Quit Claim deed is the most commonly used transfer deed yet, provides the least protection to the receiving spouse. Without warranties, it offers the grantee little or no recourse against the grantor if a problem with the title arises in the future.
A Warranty Deed may be a much better choice as it provides the most protection to the new owner. This type of deed guarantees that the grantor holds clear title to a piece of real estate and has a right to sell it to the grantee. The guarantee is not limited to the time the grantor owned the property as with a special warranty deed; rather, it extends back to the property’s earliest title. As such, earlier grantors occasionally find themselves confronted by issues from future grantees.
The decree and the divorce settlement agreement or separation agreements can make or break the divorcing clients’ ability to obtaining mortgage financing. Verbiage included within the agreement should address more than simply stating that “Mrs. Smith is awarded the home and will refinance the current mortgage. “
Verbiage within the agreement should specify the time frame in which she is to refinance, who is responsible for the existing mortgage payment, taxes, and insurance until the home is refinanced. If not worded correctly, Mr. Smith may have hurdles to overcome when trying to obtain mortgage financing himself in the future.
Addressing all marital debt in the divorce settlement agreement is another key topic that needs clarity and can affect how debt is considered during mortgage financing. If the debt is joint, specifically address how it is to be paid and by whom. Simply stating the parties will share the burden of paying joint debt 50/50 doesn’t cut it.
Clarify that each party is not only responsible for paying 50% of the specific debts but how each party is to pay. For example, Mr. and Mrs. Smith will each share the burden of paying the marital debt 50/50 and each spouse will pay 50% of the monthly payment until the debt is paid. This provides clarity as to how the debt will be counted during the mortgage application process.
It is always important to work with an experienced mortgage professional who specializes in working with divorcing clients. A Certified Divorce Lending Professional (CDLP) can help answer questions and provide excellent advice.
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