You have an interest in your spouse’s real estate by the fact of being married, and your spouse owns real estate during your marriage.
Dower can only be extinguished three (3) ways:
1. By a Final Decree of Divorce (not married anymore).
2. Death of the owner of the Dower (not married anymore).
3. Simultaneous conveyance by both Spouses during their marriage.
When Spouses both sign a Mortgage, the Dower is not extinguished but merely subordinated to the Lender’s interest.
All the owners and their spouses should sign the mortgage as Borrowers, even though one of them may not be obligated on the loan. (one spouse does not sign the Note) The mortgage removes liability on the loan from the person who does not sign the note in Section 13 of the mortgage. In the mortgage, the owners of the property are called “Borrowers”, even though the owner may not be obligated on the note. In the FNMA/FHLMC mortgage it is the “Borrowers” who transfer rights to the Lender.
So all the owners and their spouses must be called “Borrowers” in this mortgage!
If a Trustee, Partnership or Corporation owns Real Estate, the Spouses of the Trustee, Partner or Shareholder have no Dower interest.
When two people sign a Promissory Note, for example, the Lender can sue either one exclusively to collect the obligation at their sole discretion, and sue either one for the full amount of loan (joint and several liabilities).
Each person who has a credit card or who uses it may be held liable for the debt.
On small amounts creditors will try to work with the provisions of decree, but this does NOT amount to a waiver of their rights to go after both.
The Creditors are NOT made a party in the Divorce proceedings, so the rights of the Creditors are not affected.
I am told that you guys can get a new loan underwritten even before these joint debts are PAID, and not count these debts; even though your borrower is still legally liable. Can’t you get a loan for an ex-husband even though he is still legally on the old loan with his ex-wife?
HOW DO YOU DO IT?!
LIENS, DOWER, DIVORCE
A JUDGMENT IS NOT THE SAME AS A LIEN.
For a defaulted debt to become a lien, two procedures must be followed:
1. The Creditor must file suit and win.
2. The Creditor must Certify the judgment, and file it in the Common Pleas Court where the real Estate is located.
A lien filed in the “wrong” county is not a lien on real estate in another county
-If the Debtor owns real estate: (a) at the time the judgment is Certified (b) and in the County where the lien is filed, then the Judgment is valid (But, it can expire!).
After Five (5) years, (Ten years for Tax Liens) the Lien will expire. State tax liens no longer expire.
-Exception to the necessity of winning a Judgment are:
1. Condo Association Liens
2. Mechanics Liens for the construction of a home
3. Tax Liens in favor of the city, state or federal government.
–Often Judgments are won by Creditors, but they are not certified to Common Pleas Court. These judgments can show up on a Credit Bureau report, but they are not Liens.
Sometimes, valid liens will not show up on the Credit Report.
Remember a judgment is not automatically a Lien.