For the average person, real estate transactions can be difficult to understandeven when in an ideal situation. However, lately our firm has encountered several situations where a transaction has been complicated by a pending divorce. Assume you are divorcing your spouse and you want to purchase and live in another home while the divorce is pending. What, if anything, does your spouse need to sign so that you can buy your new home?
If you are buying the new home and do not need a loan, you can close without the signature or involvement of your to be ex-spouse. However, if you need a loan, Florida law mandates that so long as you are married, both spouses must sign a mortgage for it to be a lien on homestead real property. This means that even though your new home will be titled in just your name, your spouse must sign the mortgage or you will be unable to finance the purchase. Depending on how you and your to be ex-spouse get along, this may be a difficult conversation. The lender will often include specific language in the mortgage stating that the other spouse is signing the mortgage only to encumber the homestead property, and is not liable for payments under the note. If there is a subsequent default, the spouse who did not sign the note should not have his or her credit impacted by the monthly payments.
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