Q: My wife and I have been married almost nine years. At the end of 2007, we jointly purchased a home and are now in divorce proceedings.
We have tentatively agreed that she can live in the house for about 2 years until I can refinance the mortgage and buy out her part of the equity. At that point, I’d want to move back into the home. She wants to move anyway and I would like to keep the home.
Now as we are about to sign the divorce papers, she is saying that I have to sign a quit claim deed to the home (according to her attorney) and that she will sign it back in two years. Is this required of me since we are both on the mortgage and can we not simply agree that both stay on the deed until I refinance and then have her execute a quit claim since she doesn’t plan to stay there anyway?
Can the courts force me to sign or can they revoke my security of the deed just because we are divorcing?
A: The trouble with getting information from her attorney without the benefit of using your own attorney as a filter is that you may get wrong information. You do not have to quit claim the house to her while you are still on the mortgage. If in the divorce agreement, she agrees to refinance the property on her own, then you can and should issue a quit claim deed to her, preferably at the refinancing closing table.
But by giving her all the rights to the property, while still being legally liable for the mortgage, you forego any leverage you have in the situation.
You need to discuss this issue with your divorce or real estate attorney to figure out what you and she are going to do.
Jan. 19, 2009.