Legal Question in Real Estate Law in California

The lender is probably requiring that your ex-husband sign an interspousal transfer deed or a deed of trust. An interspousal transfer deed simply means he is giving up his right to claim an interest in the property and DOES NOT put his name on title. If it is a deed of trust, they are asking him to become responsible for the loan; again a deed of trust DOES NOT put his name on title, it only makes him responsible to repay the loan and secures whatever community property interest he may have in the property by the property.

You should take whatever document the lender is demanding your ex-husband sign to an attorney in your area and have them take a look at it and tell you excatly what the lender want your ex to sign. If the lender wants you to put title to the property in your ex-husband's name, look for another lender.

I agree with Mr. Hoffman. However, you didn't say whether you are "legally separated" (i.e., by court decree) or simply not living together any more. The simple term "separated" could mean either, but the legal consequences are somewhat different. For example, if you are legally separated, you probaby can't use an interspousal deed. Also, if you are not truly legally separated, the bank's extreme caution in making this loan may be justified.

Also, do not confuse the concepts of "deed" and "title." A deed is a one-use instrument used to transfer title, or interests in title. A deed can be thrown away after it is recorded, and furthermore, after it is made out and delivered, nothing and no one can be "added" to the deed. Title, on the other hand, is not a piece of paper. It is a concept, and represents legal ownership. Who is "on title" and hence is the legal owner of property, can be determined by review of all the recorded deeds and other documents affecting title at the recorder's office. Others can be added to title by deed.

Your lender is probably asking your ex to sign a quitclaim to transfer back to you any slight interest your (former?) marital community may have acquired in your separate property through the use of your income, or his, during marriage, to make the payments (or improvements) on this property. Many married people with separate property do not realize that their paychecks while married belong to the community, and using that pay on the separate property gives the community a teensy, tiny part ownership that grows as the months and years go by. This bank just wants to wipe out that sliver of husbandly claim and reset the dial to 100% your separate property.

If this is a problem, i.e., if the ex won't quitclaim, then show the lender your decree of legal separation and point out any language therein decreeing this property to be your separate property. Hopefully, you are indeed legally separated, and hopefully, you have a comprehensive property settlement in or attached to the decree that disposes of the bank's concerns.

If not, try another lender. Disclose the problem right away. If you have sufficient equity, a sliver of ex-husband interest shouldn't be too much of a problem for the lender.