Legal Question in Real Estate Law in Illinois

Waiving Homestead Rights

Is it common practice to name a spouse as a plantiff to waive his homestead rights to a property in foreclosure, when the the couple is divorced and the wife bought the property without the ex-husband signing anything? I'm wondering why Wells Fargo is doing this now, when they're finally close to actually foreclosing on the property. Thanks.


Asked on 12/12/11, 5:34 pm

1 Answer from Attorneys

GET AN ATTORNEY! That being said, really, as a plaintiff? Or "nominal" defendant. Without fully exploring this, my best bet is that what happened was this: before filing the foreclosure, the lender's attorney had to "pull title", meaning ordering a title report ("Minutes of Foreclosure") to see who might have any interest in the property or any claims to it or its proceeds, to foreclose everyone out and be able to take and later sell clean title to the property. The "Minutes" probably disclosed the divorce proceedings but not the particulars of any marital settlement agreement. So, not knowing whether your marital settlement agreement may have given you any rights that could possibly affect the property, the lender probably decided the simplest way to deal with the issue and to foreclose out any interests or rights you might have would be to name you. In a sense they did you a favor to let you know that if you do have any rights or interests, or possibly liabilities, you are on notice to protect yourself or be foreclosed out. If the property was purchased during the divorce, or prior to it, there could be other reasons, or if there are other facts, possibly yet other reasons. So your best bet would be to have an attorney review the marital settlement agreement against the purchase and now the foreclosure to see if the foreclosure could in any way affect your rights or, possibly, obligations. PS - if there were children and child support is involved, then losing the former marital residence could become a situation where the ex-wife might go into court to modify the marital settlement agreement for additional support.....

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Answered on 12/12/11, 6:02 pm


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