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Marital Interest And Deed Complexities

Posted by SeanW on August 23, 2003 at 8:39 PM

Here's something I've never quite figured out.

Scenario 1: Suppose person X buys real estate and takes out financing. X marries Y. Even under equitable distribution laws, the house still solely belongs to X, since it was purchased prior to the marriage.

But if X refinances the house, then does the spouse get any martial interest in the property?

If yes, would the spouse have marital interest, even if X is the sole trustor on the new deed of trust?

If no, what happens if both X & Y are on the new deed of trust? That's probably quite likely, since the lender would want a married couple to be liable for the loan.

[My gut feeling about this, is that it doesn't make any difference what happens on the refi. The D.O.T. just specifies "who must give up their interest under foreclosure". Y is effectively just a co-signer on such a loan, and owns nothing until X dies.]

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So, if I'm right about that... what about the more complicated situation?

Scenario 2: X and Y are married, and X buys real estate. The deed, and deed of trust are solely in the name of X. (Therefore Y has implied marital interest to the land under equitable distribution, even though that spouse is not on title.)

Would a foreclosure only force the sale of X's interest? Did Y need to be named on the deed of trust, in order for that spouse's interest to be sold too?

[My gut feeling here, is that it again doesn't matter-- because X & Y are the same unit as tenants of the entirity. But I'd hate to be wrong... and discover I bought half of something!]



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