My husband runs up credit cards in his name and I want him off the deed of our house. I just started a business out of my house and i can't afford to refinance the house at this point.
The terms of your mortgage most likely prohibit you from doing so without the permission of the mortgage holder. However, a more important reason why you may not want to do so has to do with bankruptcy. If your husband is in debt, and may be considering a bankruptcy filing, transferring his interest in the property to you could have severe consequences. That is because a bankruptcy trustee has the power to recover asset transfers made within the six years preceding a bankruptcy filing. So if the property is deeded from both of you to only you, your husband will have transferred his one half interest in the house to you for no value. That would be considered a fraudulent transfer of assets that could be recovered by a Chapter 7 bankruptcy trustee. If that were to happen, the trustee could potentially sell the house and use one half of the proceeds to pay your husband's creditors. You, and your husband, may be better off leaving the deed in both your names because your husband can claim the New York State homestead exemption (up to $150,000, depending on what county you live in) for his interest in the property. That means he can file a Chapter 7 bankruptcy and protect the house. If he transfers his interest in the property, he loses his right to claim the homestead exemption.
Please see my website for more information about asset transfers and property exemptions:
2 lawyers agree
Criminal Defense Attorney
So you want to have your cake and eat it to? Why would he agree to give up ownership of the house but still be obligated to pay the mortgage?
I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 385-8015 or via email at Eric@RothsteinLawNY.com. The above answer is for informational purposes only and not meant as legal advice.