Does Marital Status Matter When Buying or Selling a House?
Posted: September 13th, 2021
Why does my marital status matter for closing?
Florida’s law restricts married persons from alienating any interest in the homestead property without ‘joinder of spouse’, meaning that a deed or mortgage by a married person for their homestead property is invalid unless the married person is ‘joined by’ the their spouse i.e. the spouse must sign the deed or mortgage.
This requirement is found in Article X, Section 4(c) of the Constitution of the State of Florida, which states: “The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse.”
For sellers, this means that if you are selling your homestead property, your spouse must be available (and willing) to sign the deed transferring title to the buyer. This is true even if the property is only in your name and your spouse is not on title. This is true even if your spouse doesn’t live in the home. This is true even if you have a ‘prenuptial agreement’. This is true even if you and your spouse are ‘legally separated’ or have a ‘divorce from bed and board’ in another state.
If you are married and the property is your homestead (primary residence) your spouse must join in signing the deed (or mortgage for buyers as explained below). There is no bending this requirement. This does not mean that you have to be in the same room together at the same time. The spouse can sign on a separate page. Remote ‘mail away’ signing arrangements can be made if needed.
For buyers, this means that if the property you are buying is going to be your primary residence, your spouse must be available (and willing) to sign the mortgage to the lender, even if the property will be titled in your name alone i.e. your spouse is not going on title.
To be clear, the note or ‘promissory note’ is the document that creates the personal obligation / liability to repay the loan, and does not need to be signed by a ‘non-borrower’ spouse. Rather, it is only the mortgage which must be signed by the spouse to be valid under Florida law. That said, the mortgage lender may also require that the non-borrower spouse sign additional disclosures, but the spouse should not need to sign the note to become liable on the loan. Moreover, we can put limiting language on the mortgage to recite that the non-borrower spouse is only signing to waive any homestead rights that he or she would otherwise have in the property and by signing the mortgage does not incur any personal liability under the note for repayment of the loan.
All of the foregoing is true for married persons even if you are ‘legally separated’.
Some states have ‘divorce from bed and board’, but the marriage remains intact, and thus the above requirements for spousal joinder on deeds and mortgages for homestead property remain in place for individuals involved in these arrangements.
At closing, we require affidavits from all parties (statement under oath / under penalty of perjury) affirming the marital status of all sellers and buyers.
If you anticipate that your spouse is unavailable or unwilling to sign the deed or mortgage as required, please let us know immediately, as the closing cannot be completed without the spouse being available and willing to sign the deed or mortgage as required.