I alone am on the deed and mortgage note. He has never been on either. We are divorced and I am trying to go forward with a quit claim transfer to the bank, but they want his signature also. Is it necessary? Can I just move forward without his signature?
I will assume for this answer that the house that you plan to quit claim to the bank was occupied by you and your ex during your marriage as your principal residence and that it is in NJ.
There is a statutory provision in NJ that gives the each spouse an "occupancy right" to the principal marital residence, whether or not the spouse's name is on the deed. So if you were still married - even if his name is not on the deed and even if he were no longer living there - the bank's request would be appropriate, since the bank would need your spouse's signature on the deed to extinguish this statutory right.
However, I believe that the case law in NJ states that a divorce extinguishes the occupancy right under this statute. If that is the case, there is nothing legal about the bank's request, since you ex has no legal right that needs to be extinguished. I have not researched this question, and therefore urge you to consult an attorney familiar with real estate to get a definitive answer.
If I am right, make this argument to the bank and see if they will back off. If they won't, you still have the problem. Banks sometimes ask for things just because they can, or feel it is advisable, not necessarily because they have to legally.
Please consult an attorney directly before taking action. This answer is intended for general information only and should not be taken as legal advice. My communication with you is not privileged and is not within, or intended to create, an attorney-client relationship. Pursuant to Circular 230 of the Department of Treasury: (1) no written statement to be provided by me relating to any Federal tax transaction or matter is intended to be used, and no such statement can be used, for the purpose of avoiding penalties that may be imposed on the taxpayer, and (2) such written statement may not be used by any person to support the promotion or marketing of or to recommend any Federal tax transaction or matter.
The bank is trying to insure that they get complete and unquestioned title by having your ex sign. Their concern is based on the previous marital interest that your ex may have in the property. Whether or not he does not have that interest now, as a result of the divorce and by operation of law and/or the Final Judgment of Divorce or Property Settlement Agreement, is immaterial to many banks or lenders. They want to be absolutely sure, so they ask for it. They don't want to be caught in a possible legal argument from him later, even if it is frivolous.
Was this answer helpful to you? If so, please click "helpful". However, keep in mind that this advice is based purely on the little bit of information that you have given to me. There certainly may be other factors that would change my opinion. Further, no one can rely on advice from an attorney who has not been retained. You will only be able to rely on advice from an attorney who you have actually retained. I offer a free one hour consultation to any potential client who has a matter in my practice areas and geographic region. Good luck! Rob Gleaner
If you purchased the home prior to your divorce, and unless your divorce decree gives sole ownership to you and your ex previously deeded his interest to you, your ex-sposoue will likely have to sign the deed.
If this answer was helpful, please mark it as helpful or as a best answer. This answer is for general education purposes only. It neither creates an attorney-client relationship nor provides legal guidance or advice. The answer is based on the limited information provided and the answer might be different had additional information been provided. You should consult an attorney.
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