My fiance, Stephen, and I discovered we are pregnant. We live in a two-bedroom apartment and his daughters live with us every Fri-Sun. We realized we will need a larger home and wanted to start looking but I discovered that my fiances name is still on the mortgage and the deed to the home he shared with his ex wife, that she now resides in with his daughters on Mon-Thursday. In the divorce, it was agreed that she would able to reside in the family home and Stephen mistakenly believed it removed his name from the mortgage and deed.
We contacted his ex-wife to ask her to please refinance so that we could begin the process of finding our home together. She agreed to contact a lawyer when she received her tax return but decided to get braces instead. We finally convinced her to go to Wells Fargo and ask about the refinance process. She said she went and has decided she will refinance only if he signed a quick-claim deed first. I advised against this since a quick-claim deed would remove his name from the deed but not the mortgage. We asked her if we could sign the quick-claim deed but make it contingent on her refinancing or selling the home. (We are NOT interested in any equity from the possible sale of the house and only desire to remove his name from the mortgage). That did not go over well. She essentially stated that he can either sign the deed over and trust that she sells or refinances or he can take her to court. She states that since he willingly moved out and essentially gave her the house a judge would never side in his favor and even if the judge had her sell, it wouldn't be until the youngest child is 18 years old and we should "have fun living in your tiny apartment for years and years ;)". She has threatened to stop paying the mortgage if he takes her to court so that she can "royally screw his credit". She has gotten very nasty with her threats and we have saved the text exchange. She said that there is no way she could refinance on her own so she wants something to fall back on so she refuses to do anything unless we sign the quick-claim deed. She says she is "so smart" because she got a lawyer and we are essentially screwed so we should just do what she says. Should we simply trust that she will do what she says and sign the quick-claim deed? If we took her to court, is it true that we would lose? What can we do?
1 Answer from Attorneys
Do not under any circumstances sign a quit claim deed prior to being removed from the mortgage. Essentially, she is right - you are in a bad position and if your fiance went thorough the divorce without an attorney, it's his fault. However, since your fiance and his ex are now 50 / 50 owners of the property, he can petition the court to partition the property. If would be difficult to win but not impossible - at the very least, it would cause her to have to spend money she likely doesn't have. Also, unless the divorce judgement or other order or agreement gives her exclusive possession of the house, your fiance has as much right to it as she does - meaning he may be able rent a portion of it. Or paint it puke green. Or destroy parts of it Bottom line, she may not quite be in the sweet, smart position she thinks she's in if you look into all the perfectly legal ways you may be able to make her life unpleasant.