I recently got remarried. I am in the process of refinancing my property that was purchased before this marriage and I am the sole owner. I also have a prenuptial agreement that indicates that this is and will remain my sole property. The loan was approved and we're ready to close. However, my husband has to sign as a non-obligator and will also sign the deed of trust. I have been told that I cannot refinance without his signatures. I've also been told that the loan company will not hold him liable in any way if I default on the loan. Is this correct? My husband will not sign as he feels that this is too risky for him and that legally the mortgage co can pursue him. Is there anyway to get around this? We live in the state of Colorado.
The only part your husband has to sign is the page where he waives his homestead rights to the property. If he refuses to do this, you cannot get the loan. This is because without the waiver your husband could prevent the bank from foreclosing on the property even if you don't make the mortgage payments.
Your husband is not signing the Note. The Note is the only document that makes him personally liable on the loan. So long as he does not sign the Note then he cannot be held personally liable on the loan.
The bank needs your husband's waiver of homestead rights or they absolutely will not refinance your loan. There is no way around this requirement. If the refinance is of benefit to you, you need to convince your husband to consult an attorney and satisfy himself that he can sign the deed of trust.
You can reach Harkess & Salter LLC at (303) 531-5380 or info@Harkess-Salter.com. Stephen Harkess is an attorney licensed in the state and federal courts of Colorado. This answer is for general information only and does not create an attorney client relationship between Stephen Harkess or Harkess & Salter LLC and any person. You should schedule a consultation with an attorney to discuss the specifics of your legal issues.
I agree with Mr. Harkess and add that the lender only needs the Deed of Trust signed because you and your husband could mutually agree to void your prenuptial agreement in the future. If this happened, and one of you later sought a divorce, your husband would have a statutory interest in the property until resolved in the divorce. This potential requires his signature.