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Marital Signature Requirements
Why does my spouse need to sign
documents when they aren’t on title or the
mortgage?
THE EMOTIONAL TIES TO THE FAMILY
HOME OFTEN RUN DEEPER THAN ITS
WALLS—IT'S A PLACE OF MEMORIES,
SECURITY, AND COMFORT.
DIVORCE
ISSUE 21, September 2024
REAL ESTATE & MORTGAGE JOURNAL
Property Transfer Taxes
An often overlooked and costly transfer of
ownership.
Two Common Mistakes
Couples make regarding their mortgage
needs.
04
05
12
11
DOING IT RIGHT COSTS LESS
THAN DOING IT OVER
UNDERSTANDING
HOMESTEAD RIGHTS &
LEGAL NUANCES
TWO COMMON MISTAKES
DIVORCING COUPLES MAKE
REGARDING THEIR
MORTGAGE NEEDS
14
REM-S CERTIFICATION
TABLE OF
PRESIDENT’S LETTER
PROPERTY TRANSFER
TAXES
09
CONTENTS
The Value of Working with a Certified Divorce Lending
Professional (CDLP®)
A CDLP® brings the financial knowledge and expertise of a solid
understanding of the connection between Divorce, Family Law,
Financial and Tax Planning, and mortgage planning strategies
related to real property and divorce.
A CDLP® is trained to recognize potential legal and tax
implications of mortgage planning in divorce situations.
A CDLP® is skilled in specific mortgage guidelines as they pertain
to divorcing homeowners.
A CDLP® can identify concerns with support structures that may
conflict with mortgage planning opportunities.
A CDLP® works directly with the professional divorce team to help
implement a strategic divorce settlement agreement, ensuring the
best opportunities to secure mortgage financing after the decree.
A CDLP® can recommend financing strategies that help
divorcing clients identify mortgage planning opportunities for
maintaining the current marital home while helping to ensure the
ability to achieve future financing for the vacating spouse.
A CDLP® does not give legal or tax advice.
Divorce Mortgage
Planning Journal
Published by:
www.DivorceLendingAssociation.com
This for informational purposes only and
not for the purpose of providing legal or tax
advice. You should contact an attorney or
tax professional to obtain legal and tax
advice.
Copyright by
Divorce Lending Association, LLC
All rights reserved. No part of this
publication may be reproduced or
transmitted in any form or by any means,
electronic or mechanical, including
photocopying, recording, or by any
information storage or retrieval system
without the written permission from the
copyright holder.
The DLA is a national organization dedicated to bridging the gap
between the legal, financial, and emotional aspects of divorce and
the real estate and mortgage process, ensuring that divorcing
individuals have the knowledge, resources, and support they need to
secure their financial well-being and make confident decisions about
their housing needs.
What is the Divorce
Lending Association?
03 DIVORCE REAL ESTATE & MORTGAGE JOURNAL
LETTER
PRESIDENT’S
Dear Colleagues,
Divorce is never easy. Beyond the legal and financial complexities, the emotional toll can be
overwhelming, especially regarding one of the most significant assets in a marriage—the family
home. For many, the home isn’t just bricks and mortar. It represents a lifetime of memories, a
sanctuary of comfort, and a symbol of security. It's where milestones were celebrated, children were
raised, and dreams were built. However, during divorce, the emotional ties to the home can be as
challenging to unravel as the relationship itself.
As professionals working in the divorce market, it’s essential to understand the profound impact the
family home can have on your clients—financially and emotionally. This is where the value of
specialized knowledge becomes evident. Real estate and mortgage professionals like you, who are
equipped with the right expertise, can make a world of difference for divorcing homeowners
navigating these complex decisions.
At the Divorce Lending Association, we are committed to ensuring that you have the tools to guide
your clients through the emotional and financial intricacies of divorce mortgage planning. Whether
it’s helping a client retain the marital home or advising them on the best approach to move forward,
your expertise as a real estate or mortgage professional plays a critical role in their journey toward
stability.
Thank you for your continued dedication to making a positive impact in the lives of divorcing
clients. Together, we can help them move beyond the emotional and financial hurdles of divorce,
ensuring a smoother path forward.
PRESIDENT & FOUNDER
04 DIVORCE REAL ESTATE & MORTGAGE JOURNAL
Homestead Rights: Protecting the Family Home
One of the main reasons that a non-titled spouse may be required to sign title or mortgage documents,
even if they are not on the title, is the concept of homestead rights. Homestead laws protect the family
home from being sold or encumbered without both spouses' consent. These laws are rooted in the idea
that the home is central to the family’s welfare, and therefore, both spouses should have a say in its
disposition.
Homestead Rights Overview: Homestead rights prevent one spouse from unilaterally selling or
refinancing the family home without the other spouse's consent. These rights apply regardless of
whose name is on the title or mortgage and serve to protect the non-titled spouse’s interest in the
property. As a result, when a married person attempts to sell or refinance a primary residence, the
non-titled spouse must often sign the mortgage and title documents, acknowledging the
transaction and waiving any homestead rights.
UNDERSTANDING
HOMESTEAD RIGHTS
When purchasing or refinancing a primary
residence, the complexities of marital property laws
can come to the forefront, especially when only one
spouse is on the title or mortgage. A typical
scenario involves requiring the non-titled spouse to
sign certain documents, even if they are not listed
on the title or mortgage. This requirement is often
surprising and perplexing to many, especially when
the spouses are separated or in the process of
getting a divorce. Understanding why this happens
requires a deep dive into homestead rights, the
protections these laws afford spouses, and state-
specific legal nuances. Additionally, working with a
Certified Divorce Lending Professional (CDLP®)
can provide significant benefits in navigating these
complex scenarios.
LEGAL NUANCES AND THE IMPORTANCE OF EXPERT GUIDANCE IN
DIVORCE MORTGAGE PLANNING
Written by Jody Bruns, President Divorce Lending Association
05 DIVORCE REAL ESTATE & MORTGAGE JOURNAL
HOMESTEAD RIGHTS: PROTECTING THE FAMILY HOME
Impact on Refinancing: When refinancing a primary residence, lenders
may require the non-titled spouse to sign certain mortgage documents
to ensure the new mortgage lien takes priority over any existing
homestead rights. This is because homestead rights can pose a
significant risk to lenders. If the non-titled spouse does not sign off,
they could potentially challenge the validity of the lien in the future,
complicating foreclosure proceedings if the loan defaults. Lenders
mitigate this risk by requiring the non-titled spouse’s signature,
ensuring the new mortgage lien is clear and enforceable.
The Implications of Separation and Divorce
The requirement for a non-titled spouse to sign mortgage and title
documents can become particularly contentious when the spouses are
separated or in the process of getting a divorce. In these cases, the non-
titled spouse’s legal rights to the property do not automatically dissolve
simply because the couple is no longer living together or has initiated
divorce proceedings.
Separation and Continued Marital Rights: Legal separation does not
terminate marital rights, including homestead rights in many states.
As long as the spouses are legally married, the non-titled spouse may
still have a legal claim to the marital home, regardless of whether they
live there or not. This means that even if one spouse has moved out,
they must still sign off on the sale or refinancing of the home to
ensure that their rights are not violated.
06 DIVORCE REAL ESTATE & MORTGAGE JOURNAL
The marital home
often carries hidden
costs in divorce,
including not just
mortgage payments
but also taxes,
maintenance, and
long-term
affordability
concerns.
Overlooking these
financial factors can
lead to significant
challenges for
divorcing
homeowners,
impacting their post-
divorce financial
stability.
Divorce Proceedings: During divorce proceedings, the division of marital property is often one of the
most contentious issues. Until a divorce is finalized and the property is formally divided by a court order
or settlement agreement, both spouses typically retain an interest in the marital home. This interest can
complicate attempts to refinance or sell the property, as the non-titled spouse must still be involved in the
transaction. Even if the couple agrees that one spouse will keep the home, the other spouse’s signature
may be required to release any claims or rights to the property, ensuring a clear title.
Purchasing a New Home During Separation
A particularly challenging scenario arises when one spouse purchases a
new home while separated but not divorced. In many states, the soon-to-
be ex-spouse may still be required to sign title and mortgage documents
for the new house, even though they are not involved in the purchase.
This requirement is rooted in the same principles of marital property
rights and homestead protections.
Marital Property Concerns: In some states, any property acquired
during the marriage is presumed to be marital property, regardless of
whose name is on the title. Even though the spouses are separated,
they are still legally married until the divorce is finalized. As a result,
the non-purchasing spouse may have a potential claim to the new
property, especially if marital funds are used for the purchase.
Requiring the soon-to-be ex-spouse to sign the documents helps
waive any such claims and ensures the title is clear.
Avoiding Future Legal Disputes: Lenders and title companies may
also require the soon-to-be ex-spouse’s signature to avoid future
legal disputes. If the non-purchasing spouse were to challenge the
validity of the mortgage or claim an interest in the property later, it
could create significant complications for the lender, potentially
jeopardizing the enforceability of the mortgage lien. Obtaining the
soon-to-be ex-spouse’s signature mitigates these risks, and the
transaction can proceed smoothly.
State-Specific Requirements: The specific requirements for spousal
signatures during separation vary by state. In some states, statutory
laws mandate that the non-purchasing spouse must sign the
documents if the couple is still legally married, even if they are
separated. In other states, this requirement may depend on whether
the property is considered part of the marital estate or if a prenuptial
or postnuptial agreement is in place. Understanding these state-
specific nuances is crucial for both parties and their real estate and
legal professionals.
07 DIVORCE REAL ESTATE & MORTGAGE JOURNAL
WHY BECOME
AN ALLIED
PROFESSIONAL?
Together, we can make
a difference. Join the
DLA today and become
part of the solutions
for divorcing
individuals facing
complex financial
decisions surrounding
real property and
mortgage planning.
Amy Valdivia
Director of
Allied Professionals
Education.
Resources.
Community.
The emotional ties to the family home often run deeper than its walls—it's a place of
memories, security, and comfort. But during divorce, separating from the home can be
as challenging as separating from the relationship itself."
PROTECTING SPOUSAL RIGHTS AND LENDER INTERESTS
State-Specific Variations
While the principles of marital property laws and homestead rights apply broadly, the specifics can vary
significantly from state to state. Some states have more stringent requirements for spousal signatures,
while others may have different protections for non-titled spouses.
Dower and Curtesy Rights: In certain states, particularly in the South and Midwest, dower and
curtesy rights may also come into play. These traditional rights give a surviving spouse a legal claim to
a portion of the deceased spouse’s property, including the marital home. Even though these concepts
are largely obsolete and have been replaced by modern homestead rights, some states still recognize
them, necessitating the non-titled spouse’s signature on mortgage and title documents to waive these
rights.
Statutory Requirements: Some states have statutes requiring spousal signatures on mortgage
documents, even if the spouse is not on the title. For example, a non-titled spouse must sign the
mortgage documents in Florida if the property is the couple’s primary residence. This requirement
ensures that the homestead exemption is preserved and that the non-titled spouse’s rights are
acknowledged. This requirement of the Florida constitution is called 'joinder of spouse' and means
that the non-owner spouse must sign the deed or mortgage for it to be valid. Joinder of Spouse is
required even if the other spouse isn't a co-owner of the property and/or no longer residing there.
*Note that some lenders may require non-borrowing spouses to sign ancillary documents, such as the new
Closing Disclosure. These aren't title-related, and how they are handled can depend on the lender's
interpretation of state marital laws and CFPB privacy rules. Refer to the State-Specific Marital Signature
Requirements for a state-by-state breakdown.
Protecting Spousal Rights and Lender Interests
The requirement for a non-titled spouse to sign title and mortgage documents, even if they are not listed
on the title or mortgage, is ultimately about protecting both spousal rights and lender interests. Marital
property laws and homestead rights ensure that both spouses have a say in what happens to the family
home, which is often the most significant asset in a marriage. These protections do not automatically
disappear during separation or divorce proceedings, which can complicate real estate transactions, but
also provide necessary safeguards.
Understanding these requirements is crucial for homeowners and professionals involved in purchasing or
refinancing a primary residence during a divorce. Awareness of state-specific laws and the implications of
marital status can prevent delays and disputes during the transaction process. By recognizing why these
requirements exist and working with a CDLP®, both spouses can navigate the complexities of real estate
transactions with greater clarity and confidence, ensuring their rights and interests are fully protected.
08 DIVORCE REAL ESTATE & MORTGAGE JOURNAL
PROPERTY TRANSFER TAXES
09 DIVORCE REAL ESTATE & MORTGAGE JOURNAL
Navigating the Financial Implications in Real Estate and Divorce: An often overlooked and
costly transfer of ownership.
Property transfer taxes, often known as stamp duties, are taxes governments impose on transferring real
estate ownership from one entity to another. These taxes vary widely depending on the jurisdiction, the
property's value, and the nature of the transfer. Understanding property transfer taxes is crucial for anyone
involved in real estate transactions, whether buying, selling, or transferring property, especially during a
divorce. Here’s a detailed breakdown of the key components and considerations.
Definition and Purpose
Definition: Property transfer taxes are levied on
the sale, transfer, or lease of real estate exceeding
a specific duration, covering both residential and
commercial properties.
Purpose: The primary aim is to generate revenue
for local or state governments. Additionally, these
taxes can help regulate the real estate market,
discouraging speculative buying and selling.
How Property Transfer Taxes Are Calculated
The calculation of property transfer taxes varies significantly by location but generally falls into a few
categories:
Percentage of Sale Price: Many jurisdictions charge a percentage of the property's sale price or fair market
value. This rate can be fixed or progressive, increasing with the property value.
Fixed Fee: Some areas might impose a fixed fee, regardless of the property's value.
Tiered or Progressive Rates: Similar to income tax, some places have tiered rates that increase
progressively based on the property's sale price brackets.
Exemptions and Reductions: First-time homebuyers, certain types of properties, or transfers between
family members may be eligible for tax reductions or exemptions.
Who Pays the Tax: Depending on local laws and practices, the responsibility for paying property transfer taxes
can lie with the buyer, the seller, or be split between both parties.
Timing of Payment: Property transfer taxes are typically due when the sale is closed. They must be settled for
the transfer to be recorded officially and legally.
10 DIVORCE REAL ESTATE & MORTGAGE JOURNAL
PROPERTY TRANSFER TAXES CONTINUED
Variability by Location: The rates, rules, and procedures governing property transfer taxes can differ
markedly from one jurisdiction to another, even within the same state. Parties involved in a property
transaction must research the specific requirements and rates applicable to their situation.
Legal and Tax Implications: Failing to pay property transfer taxes properly can result in legal penalties,
including fines or a lien against the property. Accurate calculations and timely payment are essential to avoid
these consequences.
Divorce and Property Transfer Taxes
Property transfer taxes can introduce complications in divorce cases, especially when transferring the marital
home from one spouse to another. Here are some key aspects to consider:
Transfer Taxes in Divorce: Property transfers between spouses due to divorce proceedings may be exempt
from property transfer taxes in many jurisdictions. However, this is not universal, and specific rules can
vary widely.
Exemptions and Exceptions: Some jurisdictions exempt property transfers between spouses from property
transfer taxes as part of a divorce settlement. This is often seen as a way to reduce the financial stress
associated with divorce.
Documentation and Timing: Proper documentation and timing may be required to qualify for such
exemptions. This often means the transfer must be directly related to the divorce decree or marital
settlement agreement.
Financial Considerations
Cost Impact: The financial impact can be significant in jurisdictions where property transfer taxes apply
to divorces, particularly in high-value property transfers.
Negotiation and Settlements: Transfer taxes can affect negotiations and settlements. Spouses may need to
consider who will be responsible for these taxes or adjust their settlement accordingly.
The concern with property transfer taxes in the context of a divorce primarily revolves around whether the
transfer of the marital home will be subject to these taxes and how they impact the financial settlement
between spouses. Understanding the specific rules applicable to one's situation is crucial, as laws and
regulations can vary greatly. Seeking advice from legal and tax professionals is advisable to navigate these
issues effectively and ensure a fair and equitable resolution in the divorce proceedings.
Check to see if there are property transfer taxes in your state: Real Estate Transfer Taxes by State
Note that there may also be additional county and city transfer taxes.
How Are You Integrating Divorce Mortgage Planning into Your Case Management?