Is property bought during divorce or separation considered community property? Since many months can pass while a couple is separated and waiting for the divorce to be finalized, it's not unusual for one spouse to buy property during this time. But how will this property be handled during the divorce? Will it be considered marital property which will be divided in you divorce?
These are common questions that often come up, and our legal advisor points out some things to consider if you find yourself in this situation.
Pat's Question: My divorce is not final. Can I enter into legal contract to buy another house while I am considered still married?
Brette's Answer: You can, but whether it will complicate your divorce is another question. You should consult with an attorney to be sure.
Felice's Question: I live in a community property state. We are not divorced yet, but have mediation scheduled for the end of this month. He is living in our home while it is being sold. I have moved out and am living in a home that my family owns. My husband just closed on a home without my signing any documents. I have a copy of the loan agreement with his name as the borrower. How can this happen? Since we are still married, what type of recourse do I have?
Brette's Answer: Either spouse can buy a home during marriage; just like either one of you can go out and buy a car or a pair of socks. The question is going to be where the funds for the purchase came from. If they are marital assets, the amount of those funds will be accounted for as part of your divorce. To make up for the assets he has used to buy the home, you could receive other marital assets. You need to discuss your entire financial situation with the mediator. Usually, mediators advise their clients to put a hold on making any big financial moves during mediation.
Kim's Question: My soon to be ex-husband has already bought a home before our final settlement is signed. We sold our home and the money earned on the sale is in an escrow account until divorce is finalized. How he managed to buy this home is unknown to me. Would this be considered a marital asset?
Brette's Answer: Assets are generally divided as of the date of separation. If marital funds were used to make the down payment though, this would be taken into consideration in the property distribution.
Regina's Question: I was awarded a personal injury settlement and want to use some of the money buy a house that will give me the mobility that I require. Do I have to share that property with my husband? When I divorce, is he entitled to this property?
Brette's Answer: You need to talk to an attorney in your area. In general, if separate property isn't co-mingled, it won't be considered a marital asset. In other words, if you purchase the house in your name, using only your own separate money, and he never contributes to or participate in the upkeep or lives there, it will likely remain your separate property, but you should talk to a lawyer so you can dot all the I's and cross all the T's.
Traci's Question: I have been separated from my husband since last July, and we have not yet filed for the divorce. I would like to purchase property, but am concerned that he would be entitled to any real estate that I would acquire before the divorce is final. Please advise...
Brette's Answer: Property is generally divided as of the date a couple separates. However, if you will be using marital funds to purchase a home, those funds are part of the total marital assets that will be divided in your divorce. Consulting with a lawyer will help you understand how these assets would be divided.
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