Legal Question in Family Law in California

I quite don't understand a relationship between bank loan and deed. Is it totally separate thing? With or without a loan can you change or transfer the name on the deed? If you could, are there any problem if the bank find out?

My husband and I have a joint tenancy on our house.

We're getting divorced right now, and my husband agrees that he'll take over the mortgage payments and give me the house so I can have the sole ownership on this house.

What we want to do is:

First, refinance and consolidate the loan on his name only while my husband has equity.

Second, my husband transfer his ownership to me so I can be sole owner on this house.

Last, we get divorced.

If my husband take over mortgage payment, he has right for this house even though his name is not on the deed.


Asked on 11/09/09, 6:23 pm

1 Answer from Attorneys

You are going to run into problems if you do what you are planning. A deed is a document that transfers ownership of an interest in real property from one person to another. So you can't change the name on a deed, but rather you use a deed to change ownership, and you record the deed with the county so there is a public record of who owns it. The trouble is that when you take out a loan with a mortgage you give what is called a deed of trust (DOT). A DOT doesn't transfer present ownership of the property, but rather a right to change ownership in the future if the loan is not paid, by foreclosing. The problem with the DOT is that most of them either have a "due on transfer" clause, or incorporate a "due on transfer" clause from the loan documents. What this means is that if the person or people who own the property when the loan is given sell OR for any other reason change the ownership of the property, the loan is immediately due in full and if not paid the DOT can be foreclosed.

The other problem with this is it will make a mess of calculating spousal and/or child support.

Read more
Answered on 11/14/09, 7:09 pm


Related Questions & Answers

More Family Law, Divorce, Child Custody and Adoption questions and answers in California