Can I quit claim deed my home to my spouse to avoid a potential deficiency judgment from a foreclosure on a home I own with my ex-spouse?

My ex-husband still lives in the home we own together, he was supposed to refinance or sell within 3 years per the divorce agreement, and he hasn’t. He hasn’t been making payments and I believe he’s going to let it go in foreclosure. I’ve been told that any deficiency balance can be used as a lien on my current homestead with my new spouse. I have no other debt and don’t want to file bankruptcy, nor can I afford the attorney fees for that. I have equity in both vehicles I own as well as some equity in my current homestead, and would have to file Chapter 13.

Asked on July 10, 2012 under Real Estate Law, Florida


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Quitclaiming your title in the property that the mortgage securing the loan that you have for it will do nothing to help you avoid foreclosure of the home unless the new owner intends to cure all arrearages on the home's loan and keep the loan current. The reason is that the mortgage is recorded and is senior to any quitclaim deed that you want to record as to the unit in some one else's name.

I suggest that you consult with a real estate attorney with respect to this home to see if the loan on it is purchase money (if so, there would be no recourse under the loan) and the possibility of a short sale.

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