My spouse and I are about to separate. We own a home and agree that she will leave our house and I will buy out her equity in the home with a lump sum payment. She is willing to sign a quit claim deed at the time payment is received but it unwilling to sign a separation agreement until possibly at a later date. My question is….is the quit claim enough to protect my ownership of the home and to prevent her from coming back later and claiming she is owed more for the home? To get the lump sum, I will be getting an equity loan (2nd mortgage) in my name only. The first mortgage is already in my name only. See any other legal pitfalls that I might find in the future going this route? Thank you in advance!
You should have a fully executed separation agreement or filed court order prior to paying her her portion of the marital equity.
A separation agreement or court order legally binds you to pay the agreed-upon amount, but it also prevents her from changing her mind or claiming the amount you paid is less than what the two of you had agreed on. Without this, you have nothing to obligate her to her end of the deal which is to sign the quitclaim deed and take receipt of a specific sum of money.
The separation agreement or court order should state that you will pay her $xx by ___ date and that she will sign a quitclaim deed conveying her interest in the house contemporaneously with the new loan process, as the quitclaim deed will need to be recorded at the time of the new loan closing.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
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