Legal Question in Real Estate Law in Illinois

Homestead Waiver

My husband's name has never been on the title or loans. I am about to close on my refinance and I did not add his name to the refinance loan. The title company told me that my husband needs to come in and fill out the forms waiving his rights. Will he see my loan forms? He is unaware of debt that I have and I don't want him to see that debt on the refinance paperwork. He will be going into the title company to waive his rights to the property since I had the house before marriage. What kind of forms will be looking at and will it expose my financial information to him when signing?

Asked on 5/21/09, 12:25 am

3 Answers from Attorneys

Walter Palmer Law Office of Walter Palmer
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Re: Homestead Waiver

What he is waiving is his right to claim Homestead Rights in the case of foreclosure. There are two Homestead rights - state and federal. Federal - which he is not waiving - is a part of the Bankruptcy Act. I'm not a bankruptcy lawyer, but I'm not even sure the federal Homestead Rights CAN be waived.

A husband and wife are considered one economic unit. Each can be held responsible for debt incurred by the other after marriage. Even if there is no pooling of finance, each of you is responsible for the utilities regardless of what any pre-nup said. The legal presumption is that marriage is more than two single people under the same roof, with a pre-existing acknowledgement of child care.

Unless waived he would have some claim on the house. Here, the mortgage company wants to know that he is giving up any rights that he may have that they don't know about. Otherwise he might have some claim on major parts of the house and grounds that he paid for.

You seem to have been very lucky in his not finding out about your debt so far. You must have excellent control over what you say. He might wonder why he is not being shown the whole set of documents.

Good luck

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Answered on 5/21/09, 7:37 am
Burton Padove Indiana and Illinois Lawyer, Burton A. Padove
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Re: Homestead Waiver

Obtain copies of what he needs to sign and have him sign in front of a notary outside of closing.

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Answered on 5/21/09, 8:22 am
Thomas Moens Moens Law Offices, Chartered
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Re: Homestead Waiver

Depends on the lender, but generally he will be signing the mortgage, the truth in lending statement (TIL), and a notice of right to cancel. Some lenders have additional requirements. You can certainly ask to see which documents he will be signing, and cancel the loan if you don't want him to see something they want signed by him.

The mortgage will have the loan amount and the due date, and the TIL will have the interest rate, total of all payments, and payment amount (sometimes there will be additional information).

Not to step on any toes, but he WILL be waiving his rights under federal bankruptcy laws to any claim for homestead exemption. Otherwise what would happen is that everyone would get a mortgage to buy a house, and then go next door to the bankruptcy attorney and not have to pay the loan back. This would not work very well for lenders, as you can imagine.

If he does not sign the note, he will be under no obligation to make payments. Depending on numerous facts, he may or may not have an interest in the real estate, and the documents he will sign at closing will have no affect whatsoever on this. The only reason he is signing is to make sure that if you do not make the payments, the lender can foreclose.

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Answered on 5/21/09, 9:30 am

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