Benchmark Title Company, LLC

 Welcome to the Benchmark Title Company's Title Tip of the Week Newsletter. This week we review marital issues and homestead rights in property ownership and the effect of legal separation and divorce.  

Marital Interests in Property Transfers
by Sarah Holdener, Esq.
Many real estate transactions are triggered by a change in marital status.  People who get married are often buying a new residence and selling existing ones.  A divorce can also trigger the sale and/or purchase of real property.  There it is important to understand the law in this area:

  • As a married person you may purchase property individually by paying cash, however if you are taking out a loan or selling the property your spouse must enter into the transaction.

  • In the case of a purchase of residential property the spouse not going into title will be required to sign a waiver disclaiming any homestead interest in the property for the protection of the mortgage lender.

  • When selling a home that was owned by only one spouse the non-title holding spouse will still be required to sign the deed to transfer their homestead rights to the property.

  • Homestead in Illinois is both and estate and an exemption in bankruptcy.  Should the spouse in title to the property die, the non-title holding spouse has a homestead interest in their primary residence.

  • Marital rights held jointly by husband and wife can be severed by conveyance or death of a spouse, as well as by divorce or legal separation of the parties.  If the party you are working with is divorced or legally separated, you should inform them that the title company may request a copy of any divorce decree or legal separation agreement prior to closing. 

  • If married persons are purchasing a residence together and both will go in title, they both will be required to sign the mortgage.  All parties in title must sign the mortgage or the mortgage lender would hold a security interest in only a portion of the property.  As a general rule, all parties in title must sign the mortgage to fully protect the lender should the lender foreclose on the property.

Any questions can be directed to Benchmark Title at 618-239-3750. Please feel free to call or email:


John Howe

Doreen Miller, Esq.
Commercial Division Manager


Sarah Holdener, Esq.
General Counsel,
VP Production

Michelle Null
VP Escrow Operations

Serving you from three convenient locations:

Main Office:
1124 Hartman Lane
Shiloh, IL 62221
Ph: 618-239-3750
Escrow Fax: 618-239-3707
Title Fax: 618-239-3757
Fax Orders: 618-310-1589
John Howe

318 North Main St.
Columbia, IL 62236
Ph: 618-281-9700
Fax: 618-281-9705

Manager: Randi Schur

4215 S. State Rte 159
Glen Carbon, IL 62034
Ph: 618-288-1695
Fax: 618-288-1852
Manager: Sara Sowell

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