Financing in Lafayette Hills>Question Details

Peterg,  in San Jose, CA

can a married person in california sign a mortgage note with out their spouse?

Asked by Peterg, San Jose, CA Fri Nov 18, 2011

getting a divorse, had to borrow funds and the lender wants to do a note and deed of trust. My ex to be will not sign this, however I need the money to keep my payments current until we sell.

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Lillie Missbrenner’s answer
Hi Peter,

You may have issues with drawing up a note on the home you own together for a property you are purchasing as sole and married man. I am not a lawyer and you may want to consult one but she can come back and take you to court for doing that without her consent during a divorce. Hopefully you haven't done this as of yet.

Hope it all works put and if you need help or a referral for a real estate attorney, please call.

Best regards,

Lillie Missbrenner
Better Homes and Garden Previosly Prudential California Realty
Danville, Ca
0 votes Thank Flag Link Sun Nov 27, 2011
I vote no if your STBE is on title. You’re not divorced yet…

Jim Simms
NMLS # 6395
Financing Kentucky One Home at a Time
I answer questions about financing real estate based on my decades of experience dealing with mortgage underwriters. This answer is my personal opinion, has not been reviewed or approved by the company I work for. I do not offer legal or tax advice, if you need answers from an attorney or CPA find one knowledgeable in your local market.
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0 votes Thank Flag Link Thu Nov 14, 2013
My husband sign the note for a mortgage I did not, who has to pay the loan?
0 votes Thank Flag Link Thu Nov 14, 2013
I think a lot depends on the lender. I actually did a refi once and they never even asked my wife of 35 years to sign which I thought was odd but the loan was funded with just me on the note albeit the home is still community property. I've subsequently refied that loan and we both had to sign that on that one. Weird science.
0 votes Thank Flag Link Fri Nov 18, 2011
Signing a new Note is not the issue, it's not the lender you have to worry about, it's the Title Company that will may require your Husband to Quit Claim Deed or Inter-Spousal Deed. If you're already knee deep into your divorce, as long as you have a martial settlement agreement you shouldn't be required to have your Husband sign anything. My suggestion is to speak to your Attorney and Title Officer assigned to the Title Order.
0 votes Thank Flag Link Fri Nov 18, 2011
Ahh. You are talking about a refi? If the soon to be ex-spouse already has an interest in the property then, yes, she will be required to sign anything that places a new encumbrance (note/mortgage) on the property. I also am not an attorney but I don't think there is any reasonably easy legal way to make her sign it. You're in a tough spot there.
0 votes Thank Flag Link Fri Nov 18, 2011
I am not an attorney but I would speak with one before you do anything. I think you should definitely wait until the divorce is final because if she won't sign off on it she could have a 50/50 right to it or screw up the whole process so you can't close.
0 votes Thank Flag Link Fri Nov 18, 2011
Absolutely! The bank loaning you the money might require that the spouse sign an inter-spousal deed to ensure that spouse has no claim to an interest in the property being financed. But the spouse does not need to sign the bank note or related mortgage instruments and therefore would not be on or responsible for the debt. If it is a situation in which one spouse is separating from the other and can't get the opposite spouse to sign an inter-spousal deed than all you have to do is file for legal separation and that will eliminate the need for the inter-spousal deed.
0 votes Thank Flag Link Fri Nov 18, 2011
Hello Peter,

I am sorry you are going through such hard times. I think you may have to wait until the divorce proceedings go through or somehow convince her to sign the note.
0 votes Thank Flag Link Fri Nov 18, 2011
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