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Divorcees Must Modify Deed, Mortgage for Marital Home

Posted on in Property Division

Divorcees Must Modify Deed, Mortgage for Marital HomeYou and your spouse will decide which of you will retain ownership of your marital home after your divorce. However, the division of property in a divorce agreement is not enough to completely transfer ownership of the home to one person. As long as both of your names are on the deed and mortgage, you both will have some control over and responsibility for the home. The most efficient way to settle the issue is to transfer the deed and modify the mortgage while your divorce is still ongoing.

Potential Problems

Your divorce agreement states your intention for one of you to occupy and control your marital home after your divorce. It does not automatically change your deed or mortgage. Failing to update these documents may not have immediate consequences but will eventually cause complications:

  • One of you cannot sell the home without the other’s approval if the deed still says that you both own the home;
  • The person who no longer lives in the home could be liable for property tax and mortgage payments if the occupant does not pay them; and
  • If the occupant files for bankruptcy, the mortgage lender can pressure the other person on the mortgage to pay the remainder.

It is easier to settle these issues between each other now than returning to court years later when you are having problems.

Deed

Divorcees often use a quitclaim deed, which allows one spouse to transfer his or her interest in a property to the other spouse. The person giving up ownership must also waive his or her homestead rights. A quitclaim deed is a fairly simple document and a quick way to transfer the property. An interspousal transfer deed may be useful if one of you has a poor credit rating or you want to avoid transfer tax liability.

Mortgage

Your home deed is separate from your mortgage. You will need to negotiate with the mortgage lender in order to remove one of your names from the mortgage agreement. The lender may give you two options:

  • Releasing one of you from the mortgage; or
  • Refinancing the mortgage, which creates a new mortgage under one person’s name.

Refinancing would likely extend the duration of your mortgage payments but may be your best option if you do not have the individual income to make the payments in the current mortgage.

Contact a McHenry County Divorce Attorney

Transferring ownership of a marital home requires a careful examination of the deed and mortgage. A Crystal Lake, Illinois, divorce lawyer at Botto Gilbert Lancaster, PC, can help you complete the transfer process during your divorce. Schedule a free consultation by calling 815-338-3838.

Source:

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=076500050K10

Illinois State Bar Association State Bar of Wisconsin Crystal Lake Chamber of Commerce Illinois Trial Lawyers Association McHenry County Bar Association
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