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