My February 1, 2008 blog was on the topic of signing deeds and mortgages during the pendency of a divorce. As discussed, the issue of who must sign turns on whether the property is homestead (the married couple’s home) and whether both spouses are in title. A few people called and asked why we care and whether the same rules apply when the married couple is not in the process of divorce. Here’s my attempt to answer those questions:

My February 1, 2008 blog was on the topic of signing deeds and mortgages during the pendency of a divorce. As discussed, the issue of who must sign turns on whether the property is homestead (the married couple’s home) and whether both spouses are in title. A few people called and asked why we care and whether the same rules apply when the married couple is not in the process of divorce. Here’s my attempt to answer those questions:

• Homestead property – Both Spouses must sign - Wis. Stats. §706.02(f): We title people care that the proper people sign a deed and/or mortgage because the Wisconsin statutes tell us so. Wis. Statutes §706.02 sets forth the formal requirements to create, alienate or mortgage an interest in real property. Specifically, §706.02(f) requires that if the conveyance alienates any interest of a married person in a homestead, then the instrument must be signed, or joined in by separate conveyance, by or on behalf of each spouse. Thus if the property is homestead both spouses must sign.   

• Exception – Purchase Money Mortgage: §706.02(f) sets forth one exception to the above requirement. The exception is a purchase money mortgage – if the mortgage is a “purchase money mortgage” then only the purchaser needs to sign the mortgage, even if the purchaser is married and the property is to be the married couple’s homestead. (Note that Knight-Barry Title Group will include a requirement on Schedule B-I that either both spouses sign the mortgage OR the mortgage recite on its face that it is a purchase money mortgagee.)

• Title is not the controlling issue: Here’s a little nuance - what if the vesting deed shows two people in title “Bob and Al, both single persons” – would Knight-Barry Title Group still need to know whether either Bob or Craig were married at the time the property is to be conveyed or mortgaged and whether this is homestead? The answer is a resounding yes. Let’s say Bob and Al acquired the property in 2000, Bob was married in 2005 and lived in the home, and in 2008 Bob and Al intend to sell the property. In this situation, Bob, along with his wife, and Al, would all need to sign the deed. The fact that Bob and Al may not have lived in the property at the time they acquired title, and the fact that they were not married at the time of the acquisition, is not the issue – the issue is what are their respective statuses at the time of the conveyance out.

• Single Person or Non-Homestead: Because of §706.02(f), if the Knight-Barry Title Group searches a property and finds only one person in title, we will include a requirement on Schedule B-I that the deed and/or mortgage state either that: (a) the person in title is single, or (b) the subject property is non-homestead. If we are later advised that the Grantor is married, then we will revise the requirement on Schedule B-I to require either that the Grantor’s spouse join in the conveyance OR that the deed and/or mortgage state that the subject property is non-homestead.