My spouse and I have been separated since January when she left. I still live in our home. I want to refinance it while the rates are low. Is it wise for us to agree to split the equity, remove her from the deed/mortgage and have a signed, notarized document stating this without an official separation agreement?
It would be best to have all of this spelled out in a separation agreement so there are no problems in the future. For example, a signed and notarized document with these terms won’t necessarily distribute the house and the mortgage to you like a separation agreement would and it won’t necessarily be a final agreement like a separation agreement would. The lender may not be able to use such a non-separation agreement document to refinance the home in just your name and have the home deeded to just you. Typically lenders require a separation agreement, recorded memorandum of separation agreement, or a divorce judgment to be able to refinance a mortgage into only one spouse’s name.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Thanks!
I’m trying to make sure I do everything in the right order. I’m using a Special Warranty Deed for my spouse to sign over interest in our property/home. Am I able I draft that myself, or does Register of Deeds require an attorney prepare it?
I was thinking of using a Special Warrant Deed a lawyer prepared from an almost identical situation a few years ago as a template.
You can draft your own special warranty deed. However, if you are refinancing the mortgage, the deed is typically signed contemporaneously with the refinance process, in which case the closing attorney would draft it.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Ok. Am I understanding correctly that the separation agreement determines who gets our home, but the warranty deed actually takes names off of the deed?
If I wasn’t going to refinance right away but wanted to go ahead and have the special warranty deed signed to take her name off the deed, could I draft/sign it now, then use that document later when I refinance at closing without my spouse having to be there to sign again?
Correct - the separation agreement determines how the home (marital property) will be distributed upon a separation and divorce, and it states that the spouse keeping the home will have the home as his/her sole and separate property. But in order to effectuate that, the deed must be recorded at the register of deeds office.
Yes, it’s possible that your wife could execute the deed now and you could have that deed recorded so that you are the sole owner of the home. However, she will likely be unwilling to do this as she would be losing interest in a home in which she is still financially obligated for due to the mortgage still being in her name, assuming the mortgage is a joint mortgage or in her name only.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Is there an abandonment law in NC with provisions that would deny her interest in our home? She left suddenly with all of her belongings and she hasn’t been back for 5 months.
The division of marital property (equitable distribution) does not consider any marital fault, so your wife would still retain her marital interest in the home.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.