Buying a home while separated

[EagleAngel]

What is the name of your state? NC

I posted in Real Estate Law also, but I thought I'd try here too in case it's a better fit.

What liabilities exist when a person who's been separated for two years enters into a contract to purchase a home? Does anything change once a divorce filing is made (i.e. would home become marital property)? Can the person make the offer, file for divorce, then close on the home? Or should the divorce filing be made before the offer? TIA

 

[Golfball]

What is the name of your state? NC

I posted in Real Estate Law also, but I thought I'd try here too in case it's a better fit.

What liabilities exist when a person who's been separated for two years enters into a contract to purchase a home? Does anything change once a divorce filing is made (i.e. would home become marital property)? Can the person make the offer, file for divorce, then close on the home? Or should the divorce filing be made before the offer? TIA

Do you have a separation agreement w/ a free trader clause in place?

 

[EagleAngel]

I'm not the one going through the situation, but I don't believe she's filed for a legal separation yet. If she has I'm not sure if a free trader clause is in place. I've advised her to speak with an attorney but am just curious of what could happen if she proceeds with making an offer.

 

[Ohiogal]

The home could be considered marital property. Requiring spouse to sign on the mortgage as releasing his dower.

 

[Golfball]

I'm not the one going through the situation, but I don't believe she's filed for a legal separation yet. If she has I'm not sure if a free trader clause is in place. I've advised her to speak with an attorney but am just curious of what could happen if she proceeds with making an offer.

In NC, filing for separation is not necessary. If the parties cease cohabitating (under the same roof) w/ intention to remain separate and apart, that's all that's necessary.

However, if she hasn't signed a separation agreement w/ a free trader clause, (or gotten divorced) your friend could run the risk of the home being considered marital property, even if the spouse is on neither deed nor mortgage. (Edit: I think it would depend very heavily on how the house and related expenses is/was paid for. If the house is purchased using marital funds/assets that have not yet been divided, IMNSHO, it would be very easy to argue that the house is marital property.)

 

[LdiJ]

In NC, filing for separation is not necessary. If the parties cease cohabitating (under the same roof) w/ intention to remain separate and apart, that's all that's necessary.

However, if she hasn't signed a separation agreement w/ a free trader clause, (or gotten divorced) your friend could run the risk of the home being considered marital property, even if the spouse is on neither deed nor mortgage. (Edit: I think it would depend very heavily on how the house and related expenses is/was paid for. If the house is purchased using marital funds/assets that have not yet been divided, IMNSHO, it would be very easy to argue that the house is marital property.)

While I don't disagree, I also think how the house is to be paid for matters as well. The only thing that will be marital property is the equity in the home, assuming that marital property was involved in the purchase. If she is buying a home with a minimal down payment then there is not going to be any equity for at least a year or two...if not longer.

However, my opinion is that its never a good idea to purchase any major asset, particularly a house, while separated. Its best to put it off until after a divorce.