Quitclaim deed question


#1

I need some advice to find out if I am correct in my actions. My STBX and I signed a separation agreement a little over a year ago (I did this with the help of this service!). He has now filed for an uncontested divorce with an attorney of his own. I have signed for the papers and have no problem with this. However, the attorney also included a quitclaim deed with the paperwork and says that I need to sign and have notarized and return back to them as per separation agreement.
The separation agreement states that my ex is keeping the house, but that I will sign my rights over and the deed UPON refinance so that my name will be off the mortgage, and that this is to occur within 3 years unless we mutually agree otherwise.
My ex says he is trying to refinance now and that the mortgage company will not refinance without the quitclaim deed. I have told him that I will sign and return the quitclaim deed once I have seen a loan approval and a closing date has been secured, or that I will do it at the closing. I feel that this is appropriate because if I sign it now and he does not secure the refinance, I am still liable for the mortgage and if he defaults then I have no rights to go in and sell the property.
His attorney is saying that the separation agreement will protect me upon default of the mortgage. The SA also states that if he defaults, I have first rights to assume property and if I choose not to then the property is to be sold.
I feel that if I sign the quitclaim deed, I may be at risk, even if he breachs the agreement, I would have no rights to the property and am still liable for the mortgage.
Am I correct in refusing to sign until refinance is secured? And can his attorney attempt to have the judge hold me in contempt if I don’t sign the quitclaim even if the SA states I will sign over rights when refinanced?
Thanks so much!!


#2

Not an attorney

I believe you are correct in your thinking…an SA agreement never relinquishes you from debt obligation to a mortgage, so I believe his attorney is blowing smoke. As long as your name is on the mortgage, you are liable for the debt, end of story. Even with the provision you assume the house with his default, that will ruin your credit and cost you the expense of reversing foreclosure proceedings when he’s defaulted. Therefore, it is wise NOT to quitclaim the deed until your ex refinances, otherwise you are liable for a mortgage to which you no longer have the collateral (the house). I think your offers to do so at closing, etc. are fair, and I imagine any judge would agree.


#3

I think you are correct as well. The separation agreement does protect you however it doesn’t protect you from the bank. You will have to go back to court to show a judge the breach of contract. It’s a big mess. I’ve never seen a bank require a quitclaim to refinance.


#4

I agree with your thinking. I actually always write my agreements that the property be deeded at the time of refinance for that very reason. You could be liable for the mortgage and have no interest in the property.

There is no way to hold someone in contempt for a separation agreement unless it is incorporated into a court order. Without incorporation, the only way to enforce an agreement is with a breach of contract action.


#5

Thank you all so much for your responses! I feel much more confident in my decision!


#6

Also just a shout out for Rosens Online service. I used it to get my separation agreement done and I have been VERY happy with it! It has totally covered my situation as I needed and now has covered me against his lawyer for an issue! Thanks so much Rosen Law Firm!!


#7

You’re welcome, and thanks for your kind words! I will pass your gratitude on to the other attorneys in our firm that work for Rosen Online.