Posted by O/CNotary on 12/19/05 10:20am
Msg #83378

Docs are for "a married man as his sole and sep property",

BUT, there is nothing for the wife to sign and not instructions for her to do so. CA is a community property state. Is it my responsibility to call title and ask about this or do I just have the BRW sign as it is? Any suggestions? Thanks!

Reply by NM_CO on 12/19/05 10:25am
Msg #83380

There may be a pre-nup that underwriting has at the lender but it wouldn't hurt to double check plus it makes you look smart for paying attention and asking before the closing is actually happening.

Reply by SarahBeth_CA on 12/19/05 10:41am
Msg #83384

Re: Docs are for "a married man as his sole and sep property

I call and verify. I have had it go either way. If for any reason they missed something you can have it noted who gave you instructions and what the instructions were.

Reply by MBCA on 12/19/05 11:13am
Msg #83391

Good Question! What is our Responsibility??

I've had 2 signings recently where the spouse wasn't even mentioned on the docs at all! I've read all the threads here and we've talk about how it should be done in California, but am I liable? We seem to be taking on more and more responsibility for what the lenders should have thoroughly researched before they put the loan package together. They know more about the marital dynamics of this couple than we do!

Reply by Charm_AL on 12/19/05 11:34am
Msg #83397

Re: Good Question! What is our Responsibility??

Our responsibility is to know our state's laws. If you get something that doesn't look right, by all means call the company and ask about it.

Reply by MBCA on 12/19/05 12:26pm
Msg #83406

I Agree!

Thanks Charm, I agree! If we're talking about notary law in California. If we're talking about how a person/couple chooses to hold title isn't that a different situation?

Reply by Jules on 12/19/05 1:57pm
Msg #83426

I always double check also. From my previous experience I know that you may take title as "Married, sole and separate property" then your spouse doesn't need to sign anything. Often this is the case of someone who bought property before they married and they want to keep that as their separate property.

California is a "community property state". However, anything that was obtained prior to marriage is considered separate property. In addition property (or accounts) can be acquired as separate property after marriage if it is kept separate. ie. purchased with money in an account that is only in the name of the one person or a gift or inheritance.

Reply by Marla_FL on 12/19/05 9:21pm
Msg #83508

FL is community property also and

if they are married and it will be their primary res, then they both must sign. If it is investment (for business) then the spouse is not required to sign.

Reply by PAW_Fl on 12/19/05 9:43pm
Msg #83516

Re: FL is community property also and

Florida is not a community property state. Florida is a homestead state and there is a big difference.

'Community property' is a marital property regime that originated in civil law jurisdictions, and is now also found in some common law jurisdictions. In a community property jurisdiction, all property acquired during the marriage (except for gifts or inheritances) is owned jointly by both spouses and is divided upon divorce, annulment or death. The community property system is usually justified by the idea that such joint ownership recognizes the theoretically equal contributions of both spouses to the creation and operation of the family unit.

Division of community property may take place by item, by splitting all items or by value. In some jurisdictions, such as California, a 50/50 division of community property is mandated by law; in others, such as Texas, a divorce court may decree an unequal division of community property. In non-community property states property may be divided by equitable distribution. Generally speaking, the property that each partner brings into the marriage or receives by gift, bequest or devise during marriage is called separate property.

In the United States there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In addition, Puerto Rico is a community property jurisdiction. Married couples in Alaska can also adopt community property rules, at least for the purposes of that state's law, by signing an agreement to that effect. Most states that operate under community property regimes were first colonized by Spain or France, which have always been civil law jurisdictions.

The following are the states have unlimited homestead exemptions: Florida, Iowa, Kansas, South Dakota, Texas, and the District of Colombia. I believe there are 24 or 25 other states have limited homestead exemption laws.

Please note that Texas is a community property state AND an unlimited homestead state.

Reply by Marla Escobar on 12/19/05 10:32pm
Msg #83531

You are right PAW. I stand corrected on the terminology.

Reply by Glenn Strickler on 12/19/05 4:28pm
Msg #83457

DOT

Depends on how the current Deed is filed with the county. If it just has the husband's name on it, then the wife does not have to sign off on anything as far as the loan goes. If she is on the deed, but the husband is the only one who is going to be responsible for the loan, then a quit claim deed is included in the loan package. Sometimes in the loan company will include one even if the spouse is not on the deed to the property. However it is not up to the notary to worry about what the loan package needs to include, we are just an impartial witness to the transaction. It is up to the loan and title company to be sure that the correct documents are included in the loan package. I have made a second trip out to have a quit claim deed signed (I was paid for it). Now when I look through the loan package and see this type of loan, I do make a courtesy call back to the TC to see if they want to include a quit claim deed or not. Almost always, the answer is no.