Staying on a home’s deed during a divorce

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Q. My wife and I are on the verge of getting a divorce. I am on the deed to the house but I am not on the mortgage to the house. She’s going to refinance the house and she told me that I can’t go on the deed for her to refinance it. I’m not going on because of my credit. Am I able to get on the deed even if she’s refinancing it just into her name?
— Planning

A. Based on the situation described, the short answer is yes.

It is possible to have your name on a deed to marital real estate without being named on the refinanced mortgage associated with that real estate, said Thomas Roberto, a family law attorney with Adinolfi, Molotsky, Burick & Falkenstein in Haddonfield.

Whether or not this is practical in any particular case really depends on the specific facts, he said.

But, it is possible.

Roberto said these issues are often addressed as part of a marital settlement agreement. One spouse will “buy out” the other spouse’s equitable interest in the marital home in exchange for title to the home.

The transfer of title is effectuated by way of a deed, he said.

“The spouse retaining the home often needs to refinance the mortgage to obtain the funds used to effectuate the buyout and/or to remove the other spouse’s name from the mortgage,” he said. “This generally occurs after or contemporaneous with the entry of a final judgment of divorce dissolving the marriage.”

So if your spouse is refinancing for purposes of buying you out of the house, we’re guessing your divorce agreement would include taking your name off the deed rather than keep it on. It makes sense that you want to keep your name on the deed to protect yourself until the divorce is finalized, so you should speak to your attorney about the timing of the refinance and what it means for your divorce agreement.

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This story was originally published on Sept. 12, 2019.

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