Legal Question in Real Estate Law in Florida

Re: Wife filed bankruptcy and husband buying a home

NOTE: This communication is not intended as and should not be interpreted as legal advice. Rather, it is intended solely as a general discussion of legal principles. You should not rely on or take action based on this communication without first presenting ALL relevant details to a competent attorney in your jurisdiction and then receiving the attorney's individualized advice for you. By reading the "Response" to your question or comment, you agree that the opinion expressed is not intended to, nor does it, create any attorney-client relationship, nor does it constitute legal advice to any person reviewing such information, nor will it be considered an attorney-client privileged communication. If you do not agree, then stop right here, and do not read any further.

All lenders require a spouse to sign the mortgage however (but not the Promissory Note) regardless of whether the spouse is named on the Deed or not, so that they can foreclose on both parties in case of a default in the payment of the mortgage.

Pursuant to the Florida Constitution, unless the party specifically agrees, all debts of a party are not valid against his/her homestead. The marital residence is generally the homestead property and thus would be exempt from the claims of all creditors including the mortgage company absent the spouse joining in on the mortgage.

Based on the information you provided, the lender should not be concerned with your wife's credit history as it will not be used to grant or deny your mortgage.

Your wife does not need to attend the closing, however. It can be handled as a "mailaway" by a qualified real estate attorney for either or both of the Buyers.

Scott R. Jay, Esq., 305-249-8000