You need to sit down with a family law attorney or a real estate attorney and figure out your best course of action. I have more questions than answers.
First, I would want to read this "Consent of Spouse." Who is the "Guarantor?" If your ex owns the home, then he is the Borrower. The only person left is you. Why should you guaranty his loan? Why should HIS loan for HIS house where you DON'T live be a community obligation? That says that your interest in any community property could be used to pay the loan.
None of that makes sense, because home loans in California are non-recourse. The lender's sole remedy is to take the hosue. It cannot go after other property. The lender CAN go after property of a guarantor. I would want to make sure you were no inadvertently and unexpectedly becoming his guarantor.
Second, I would want to know more about your divorce. There might be other facts and strategies in this divorce which might suggest cooperating. Maybe the Consent of Spouse could be corrected. Maybe the lender would accept a fresh updated Interspousal Transfer Deed or Quitclaim Deed acknowledging that you have no claim to the house. As part of those negotiations, you should be compensated for cooperating. Are there any other assets in dispute which he could let you have? Are there any of you possessions which he has not returned to you? Is he late with any spousal support or child support payments? Maybe he should give up those issues and turn over what you are entitled to in exchange for your cooperation.
You have no obligation to sign anything for your separated husband regarding his separate property, unless you have a prenuptial agreement. Then it depends on whether this transaction is covered by some section of the prenuptial agreement, and even then, you only are required to do what's called for in the agreement. I doubt it covers what the lender is asking for. The lender is asking for way too much.
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Do you have a revocable living trust to protect your heirs against probate? Probate takes forever, is expensive, and is annoying. Do your family a favor. Set up a trust, and put all your property, especially any real property, into the trust. Since it is revocable, you can change it, add to it, take property out of it, or even cancel it completely, at any time. We set up such trusts, provide a pour-over will as a back-up for any property that does not make it into the trust, provide you with blank durable powers of attorney for health care and financial decisions, in case you become incapable of making such decisions while still alive, and convey one piece of real property to the trust, usually the family home, for $1500.00. If you would like to hire me to do this, let me know, and I'll send you a list of the information I need.
Dana Sack
Answered on Jul 09th, 2015 at 1:54 PM