Purchasing a New Home During Separation
A particularly challenging scenario arises when one spouse purchases a
new home while separated but not divorced. In many states, the soon-to-
be ex-spouse may still be required to sign title and mortgage documents
for the new house, even though they are not involved in the purchase.
This requirement is rooted in the same principles of marital property
rights and homestead protections.
Marital Property Concerns: In some states, any property acquired
during the marriage is presumed to be marital property, regardless of
whose name is on the title. Even though the spouses are separated,
they are still legally married until the divorce is finalized. As a result,
the non-purchasing spouse may have a potential claim to the new
property, especially if marital funds are used for the purchase.
Requiring the soon-to-be ex-spouse to sign the documents helps
waive any such claims and ensures the title is clear.
Avoiding Future Legal Disputes: Lenders and title companies may
also require the soon-to-be ex-spouse’s signature to avoid future
legal disputes. If the non-purchasing spouse were to challenge the
validity of the mortgage or claim an interest in the property later, it
could create significant complications for the lender, potentially
jeopardizing the enforceability of the mortgage lien. Obtaining the
soon-to-be ex-spouse’s signature mitigates these risks, and the
transaction can proceed smoothly.
State-Specific Requirements: The specific requirements for spousal
signatures during separation vary by state. In some states, statutory
laws mandate that the non-purchasing spouse must sign the
documents if the couple is still legally married, even if they are
separated. In other states, this requirement may depend on whether
the property is considered part of the marital estate or if a prenuptial
or postnuptial agreement is in place. Understanding these state-
specific nuances is crucial for both parties and their real estate and
legal professionals.
07 DIVORCE REAL ESTATE & MORTGAGE JOURNAL
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The emotional ties to the family home often run deeper than its walls—it's a place of
memories, security, and comfort. But during divorce, separating from the home can be
as challenging as separating from the relationship itself."