Posted on: 03rd Jan, 2008 09:30 am
Hi,
I recently have divorced from my wife and in the divorce agreement we agreed that I would pay her off for the house and the house would be mine. (I have paperwork stating this) What are my choices for making sure I am clear of her coming back and staking a claim for the house. I live in California.
We are both on the title of the house. We are still both on the mortgage for the house.
In regards to the mortgage, is there anyway to get her off of this other than refinancing? I am undecided about how long I will stay in the house so I am not that inclined to want to invest in refinancing and paying all the fees necessary to do this. Are there any downsides to me for leaving her on the mortgage?
In regards to the title to the house, what are my options for removing her name? After reading a little bit about deeds, it is not clear what type I need to make this transfer happen. I have read about quit claim deeds, grant deeds, warranty deeds, etc. Which is the right way to go and how do I actually proceed with this process? The following article states that a grant deed should be used in California. Here is what it says.
Grant Deed
The most commonly used property deed to transfer title in California is the grant deed, although it is not against the law to use other types of deeds. There are two guarantees contained in a grant deed:
Under California law, and your state laws may differ, to be valid, a grant deed needs to contain six essential elements. Those six items are defined as:
How do I go about getting a grant deed?
I appreciate your input.
Leo
I recently have divorced from my wife and in the divorce agreement we agreed that I would pay her off for the house and the house would be mine. (I have paperwork stating this) What are my choices for making sure I am clear of her coming back and staking a claim for the house. I live in California.
We are both on the title of the house. We are still both on the mortgage for the house.
In regards to the mortgage, is there anyway to get her off of this other than refinancing? I am undecided about how long I will stay in the house so I am not that inclined to want to invest in refinancing and paying all the fees necessary to do this. Are there any downsides to me for leaving her on the mortgage?
In regards to the title to the house, what are my options for removing her name? After reading a little bit about deeds, it is not clear what type I need to make this transfer happen. I have read about quit claim deeds, grant deeds, warranty deeds, etc. Which is the right way to go and how do I actually proceed with this process? The following article states that a grant deed should be used in California. Here is what it says.
Grant Deed
The most commonly used property deed to transfer title in California is the grant deed, although it is not against the law to use other types of deeds. There are two guarantees contained in a grant deed:
- The grantor states that the property has not been sold to anybody else.
The grantor states that the property is not burdened by any encumbrances apart from those the seller has already disclosed to the buyer.
Grant deeds do not need to be recorded to be valid, nor do they need to be notarized to be valid, but most sellers do ask a notary to witness the deed, acknowledging that the seller is the person who signed the deed. And most buyers want the protection of recordation, to give "constructive notice to the world" that the property has been sold.
Under California law, and your state laws may differ, to be valid, a grant deed needs to contain six essential elements. Those six items are defined as:
- A written document.
A clause that transfers title, called a granting clause.
The names of the Grantor and the Grantee.
A description of the property being transferred.
Execution, delivery and acceptance. It must be signed by a competent grantor, meaning minors and those declared incompetent cannot sign a deed; given to the buyer while the seller is still alive (not after death) and accepted by the buyer.
Grantor's signature.
How do I go about getting a grant deed?
I appreciate your input.
Leo
The only way other than refinancing is to get the current lender to take her off. It is not likely they will do so as there is really no benefit to them doing so.
You can leave her on the mortgage and take her off title. HOWEVER you have to check with your current lender to see if this is allowed in your situation. They could, if you transfer title without their knowledge, force the immediate sale of your home, and get the payoff of the mortgage.
So you see even though refinancing isn't what you want to do. It may be what you need to do.
Now if you are still friends and trust each other then you could simply leave it alone and transfer once the mortgage is paid off.
It is important to note that I am not an attorney and you should consult with one before proceeding. Did you have a divorce attorney? If so, talk to them and see what they think would be the best route to take. They may even be able to prepare the new title work for you.
You can leave her on the mortgage and take her off title. HOWEVER you have to check with your current lender to see if this is allowed in your situation. They could, if you transfer title without their knowledge, force the immediate sale of your home, and get the payoff of the mortgage.
So you see even though refinancing isn't what you want to do. It may be what you need to do.
Now if you are still friends and trust each other then you could simply leave it alone and transfer once the mortgage is paid off.
It is important to note that I am not an attorney and you should consult with one before proceeding. Did you have a divorce attorney? If so, talk to them and see what they think would be the best route to take. They may even be able to prepare the new title work for you.
hi leo,
welcome to the forum.
you have gathered right information regarding the deed. the grant deed will be best here to transfer the property you can use a quitclaim deed also. you can check this article to have a clear idea about quitclaim deed - http://www.mortgagefit.com/quitclaim-deed.html
in regards to the mortgage, you can do a novation to release your wife from the mortgage. but lenders don't always agree for novation. so i think refinance is a good option for you to release your wife from the mortgage.
before taking any steps you should better consult with an attorney as eric has also mentioned above.
feel free ask if you have any further questions.
best of luck,
larry
welcome to the forum.
you have gathered right information regarding the deed. the grant deed will be best here to transfer the property you can use a quitclaim deed also. you can check this article to have a clear idea about quitclaim deed - http://www.mortgagefit.com/quitclaim-deed.html
in regards to the mortgage, you can do a novation to release your wife from the mortgage. but lenders don't always agree for novation. so i think refinance is a good option for you to release your wife from the mortgage.
before taking any steps you should better consult with an attorney as eric has also mentioned above.
feel free ask if you have any further questions.
best of luck,
larry
If you want to play it safe, I would suggest refinancing the mortgage into your name only and have her sign a quit claim deed. Mortgage rates are low right now so you may even benefit more by taking care of it now. With good credit and some equity in the property, you should be able to get 5.50% on a 30 year fixed rate mortgage. A 15 year mortgage is right around 5% flat.