Sherwood, AR asked in Real Estate Law for Alabama

Q: I am the only one on the mortgage and deed. I am working on getting it refinanced.

What paperwork does my husband legally have to sign if he is not on the loan for the refinancing?

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1 Lawyer Answer
Ben F Meek III
Ben F Meek III
Answered

A: The lender will probably require him to sign something subjecting or subordinating his homestead rights in the property to the lien of the mortgage. That's because most states (if not all) have created homestead rights in the home of a married couple and their minor children such that if one spouse dies, the other can stay in the home for the rest of their lives and their general unsecured creditors cannot attach the homestead property. The homestead right exists when the married couple or family reside in the home, even if one or the other does not appear in the title. Knowing that the co-habiting spouse has homestead rights in the property, a mortgage lender to only one of the two will require the non-borrowing spouse to subordinate his or her homestead right in the property to the lien of the mortgage. Otherwise, the lender could not foreclose that spouse's homestead right if the other were to stop paying the mortgage debt. You can ask for the loan documents before you have to sign them. Tell your lender you want a couple of days to read the documents before you sign. Then consult am experienced local real estate lawyer about the loan documents, especially the ones they want your husband to sign. Good luck.

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