Silver Spring, MD asked in Real Estate Law for Virginia

Q: I own my house. I married last year and did not put my husband's name on the deed. I now want to get some equity out.

My husband is willing to be on the loan. Can he be a co-borrower with me?

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1 Lawyer Answer
Thomas H. Roberts Esq
Thomas H. Roberts Esq
  • Richmond, VA
  • Licensed in Virginia

A: Yes. But if I am correct, there is more to your question. In the event that your current marriage ends by divorce how will the house be treated? The equity in your house at the time of your marriage will be considered your sole and separate property. Taking that equity out and using it will of course result in the loss of the sole and separate property, unless it remains separate and traceable. Marital money (money acquired during the course of the marriage) used to pay the mortgage will be considered marital property whether or not he is the co-borrower. In the event that your marriage is strong and will last, you loose a potential protection by not turning the property into property that is held as "tenants by the entirety" or "joint with the right of survivorship"

One Virginia court explained the benefits as follows: If such a tenancy by the entirety in the fee existed, neither the husband nor the wife could subsequently force a partition; neither party could by his sole act convey his interest and bring about an immediate severance and conversion to a tenancy in common; and the property so held would be immunized from the claims of the individual creditors of each spouse. ( Burroughs v. Gorman, 166 Va. 58, 184 S.E. 174; Allen v. Parkey, supra; 2 Minor, Real Property, § 854). Thus if the husband should be engaged in a speculative business enterprise which turned out badly, forcing him to go into bankruptcy, the property held by the husband and wife together, would not be subject to the claims of his creditors. Moreover, the judgments of the individual creditors of either spouse would only be leviable upon the respective spouse's interest if and when he or she should survive the other, and, in the meantime, the husband and wife could convey the property so held to a third party, who would take it completely free from the claims of the individual creditors of the husband and wife.

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