Several Common Questions...But I'm Still Confused

[ready2moveon]

Hi all, new to the boards.

I am in the process of divorce and I have recently completed the Temporary Hearing and we have a temporary agreement. We have one young child and no other children.

Both of us are active in our child's life as we both are full time employees at our respective jobs (a true time 50/50 split with the child). The temporary agreement is for 50/50 joint, I keep the home as it has virtually no equity to share and would cost both of us to sell, I took responsibility for all of our previously aquired debt, and we both are to make our own car payments going forward, I pay CS in the amount required by the state. I feel it is somewhat fair and most of the burden has been left to me in terms of monetary issues.

My questions to you all:

The house: S/he is expressing an interest in purchasing a new home of his/her own right away and wants me to "remove his/her name from the mortgage" so he/she can finance easier. My attorney says this is not common and it does not need to be done and advises against it. I talked to my mortgage company and they say that re-financing is the only way to give him/her what he/she wishes but that it is not that common. What shall I assume is going to be expected of me or forced on my in a final divorce decree here should he/she push the issue? I know there are no promises.

Custody: There are no extranious issues here that would prevent either of us remaining active 50/50 parents but the opposition is claiming that s/he may change his/her mind and try to get sole custody. I understand that Temporary Agreements are tough to reverse or alter in a major way without a fight. How true is this in most cases?

The Temporary Agreement: Assuming we play by the rules 100% and there are no altercations, how much of this agreement will most likely stick if s/he decides to pull a 180 on me and go for full custody as is being eluded to and we wind up in a full blown court battle?

A bit of background: We both are employed, we both have college degrees, I make a bit more than s/he, child is happy and healthy and loves us both, etc. There is nothing to really prevent either of us from being active parents other than the opposition and/or the courts. I want whats best for my child which is 50/50 and a smooth enviroment but the opposition is being difficult.

Thanks for anything that might set my mind at ease or save me some grief in this rough time.

[nosonew]

I should think a quit claim deed would suffice.  I had to refinance my car to get my spouses name off of that, but not a house.  Anyone else?

[ready2moveon]

Thanks, nosonew.

I have heard the term 'quit claim deed' but the attorneys and mortgage companies are not saying anything about the use of one. Any details on where to obtain one and how to submit it? I'd sure appreciate it.

[deb09]

OK let me see if I can explain this.

There is a deed which is a piece of paper saying who is the owner of this property.

There is a mortgage saying who owes money to this bank.

They are not the same.  She can sign a quitclaim which would remove her name from the deed, or she can sell you the house for $1 and you can file a new deed anytime.  

The only way you can get her name off the mortgage is to refinance the mortgage.  She cannot just give away her obligation to the bank, and you cannot assume her obligation to the bank.

If you go with a mortgage broker, you can refinance for a few thousand dollars.  You can even roll the refinance cost into the new mortgage so that it doesn't "cost" you any real $$ except for the loan $$.

Some couples never refinance and there are problems later.   Better to make the split as clean as possible...

Deb

[Peanutsdad]

Aquit claim deed is a document one spouse signs, giving up any interest in the home. It is filed with the county tax office. It does absolutely nothing as far as the mortgage and responsibility to that. The only way with a mortgage is to refinance.

[ready2moveon]

OK.

Now I see the light. I will most likely go with the quit claim at first then re-fi once I get my feet on the ground. Now all I can do is hope for some cooperation.

Thanks all and any thoughts on the other questions I posed?

[joni]

You can refinance, which is what most companies offer.  With interest rates, this may not be a bad deal.

My DH's had to take his Ex off the mortgage AND off the title of the properties.  Two seperate issues.

His mortgage company allowed him to do a quick release to take her name off without a refi.  They still reviewed his financials and the divorce settlement to make sure he could afford it on his own.  

The mortgage company released her name from the loan.  After that was done, he then had to remove her name from the deed.  His Ex wouldn't allow her name to be removed from the deed until she was released from the liability first.

However, your mortgage company may not allow option 2 because your divorce is not yet final and they may be concerned with your ability to pay the mortgage on your own....not knowing what sort of liability you're going to saddled with from the divorce.

[ConcernedCP]

> I will most likely go with the quit claim
>at first then re-fi once I get my feet on the ground. Now all
>I can do is hope for some cooperation.

The soon-to-be-ex is not released from the mortgage financial obligation by signing a quit claim deed.  In fact, if a quit claim deed to the house is signed transferring all ownership of the house to you while the mortgage is still jointly owned, your soon-to-be ex will be forfeiting the asset (home) while maintaining the liability (mortgage) which will hinder the purchase of his/her new home (and be a foolish thing on his/her part to do).  

Also, depending on the dowery rights in your state, a quit claim deed may not be valid if signed before the divorce/dissolution in final.  Likewise if soon-to-be-ex purchases a new home prior to finalization of div/dis, you may mave dower rights to his/her new home....this varies by state.

To protect both parties, do the refinance and the quit claim simultaneously (and be sure to address any applicable dower rights separately or in sep agreement and div/dis).