It’s Friday and this question seems to come up at least once every Friday. The question – when a married couple is in the process of a divorce, but the judge has not yet signed the judgment of divorce, who signs a new deed or mortgage? The answer depends on two questions: (1) Is the property homestead (the married couple’s home)? (2) Are both spouses in title?
It’s Friday and this question seems to come up at least once every Friday. The question – when a married couple is in the process of a divorce, but the judge has not yet signed the judgment of divorce, who signs a new deed or mortgage? The answer depends on two questions: (1) Is the property homestead (the married couple’s home)? (2) Are both spouses in title?
A. Homestead property – Both spouses in title: Until the judgment of divorce is granted, both spouses must sign the deed or mortgage.
B. Homestead property – One spouse in title: Three options:
(i) Both spouses sign deed or mortgage with no changes to the standard language in the deed or mortgage; or
(ii) Both spouses sign deed or mortgage with the following language appearing above the non-titled spouse’s signature:
i. Deed: “The undersigned signs this deed solely to convey the undersigned’s homestead interest under Wisconsin homestead law. The undersigned does not claim to own the property and does not by signing this deed warrant title to said property.”
ii. Mortgage: “The undersigned signs this mortgage solely to validate the lien of the mortgage under Wisconsin homestead law. The undersigned does not claim to own the property (and not is not responsible for the debt secured by the mortgage)” (the language in the parenthesis is required only if the non-titled spouse signs the promissory note).
(iii) Titled spouse signs the deed or mortgage. Non-titled spouse signs an “Alienation of Homestead Interest” affidavit pursuant to §706.02, Wis. Stats., acknowledging the alienation and conveyance of the non-titled spouse’s homestead interest in the property and either: (a) affirming the superior interest of the lien of the mortgage, or (b) acknowledging for the purpose of the conveyance of the property. The affidavit is recorded with the Register of Deeds. (The Knight-Barry Title Group has “Alienation of Homestead Interest” affidavits available upon request).
C. Non-homestead property – Both spouses in title: Until the judgment of divorce is granted, both spouses must sign the deed or mortgage.
D. Non-homestead property – One spouse in title: Titled spouse signs the deed or mortgage. Additionally, if the sale or refinance is in the ordinary course of business, no further action is needed; however, if the sale or refinances is NOT in the ordinary course of business, then either: (i) the non-titled spouse must consent to the sale or refinance by signing an “Affidavit of Consent” (forms of which are available at the Knight-Barry Title Group), or (ii) the court enters an order authorizing the sale or refinance. (See §767.117(1)(b), Wis. Stats., stating: “767.117 Prohibited acts during pendency of action. (1) PROHIBITIONS. In an action affecting the family, the petitioner upon filing the petition, the joint petitioners upon filing the joint petition and the respondent upon service of the petition are prohibited from doing any of the following: (b) If the action is one under s. 767.001 (1) (a), (b), (c), (d), (h), or (i), encumbering, concealing, damaging, destroying, transferring, or otherwise disposing of property owned by either or both of the parties, without the consent of the other party or an order of the court, except in the usual course of business, in order to secure necessities, or in order to pay reasonable costs and expenses of the action, including attorney fees.”)