Buying A Home While Legally Separated.

By
Real Estate Broker/Owner with Select Properties of Fayetteville, LLC NC 226467
https://activerain.com/droplet/4hwM

Can you be separated from a spouse and purchase a new home as sole owner?

North Carolina is a marital interest state. That simply means when one spouse owns real property the other spouse has marital interest whether it was purchased prior to the marriage, purchased while  happily married or separated.

Oftentimes, I have sellers who think their spouse doesn't need to be involved in the sale of a home because they may have purchased the home prior to the marriage and the deed to the property is only in their name.

That is irrelevant. Once the spouse with the property marries, that new spouse owns half the interest in that property. Sometimes that news doesn't go over very well with some clients but most often it's not an issue.

It also works for purchasing a home. Because a separation is only just that, a separation, and not a divorce, a married but separated individual can not purchase new property without the other spouse's name also appearing on the deed as owner.

OR so I thought. I recently had a call from a young man about one of my listings. I met him and who I assumed was his wife at the property. After explaining agency and dual agency to them they felt I was honest enough to want to allow me to represent them as their buyer agent.

They followed me back to my office and as I went conducted my needs analysis and buyer consultation with them I discovered that he was indeed married but not to the young lady with him.

Turns out he and his wife are separated and have gone their separate ways. NC has a required one year separation before a divorce can be granted. I explained that as far as I knew any home he purchases must have title in both his and his wife's name because she has marital interest in the property.

Well, I found out from an attorney that may not necessarily be the case. I called a number of lenders until I found one allows what is called Instantaneous Siezen.

That means my seperated buyer may purchase a house and title be made only in his name. So, while I stand corrected in that he CAN indeed purchase the home and title be only in his name it still leaves him with a home that he can not sell without  the wife's signature.

Even though her name is not on the title she still has marital interest. I wanted him to make sure he understood that. I didn't want him to be surprised when he went to sell this house that she never lived in to know that she must approve the sale.

He said the wife is so cantankerous that he knows she would not agree to a quit claim deed. My concern is that unless their relationship changes to a more amicable one she can make things very difficult for him if he gets orders and has to move and sell this home before his divorce is final and the disposition of this house is settled by the divorce.

This business never fails to teach me something new. I just wouldn't have thought that it would be possible for a separated individual to buy property and have the deed solely in his/her name. Though I wonder if it is a wise move since you are really buying with the spouse, it's just that the name is not visible on the deed.

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Re-Blogged 1 time:

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  1. Richard Weeks 07/04/2010 04:26 PM
Topic:
Real Estate General Information
Location:
North Carolina Cumberland County Fayetteville Fort Bragg
Groups:
Realtors®
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Tags:
buying a home
marital interest

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Rainmaker
2,975,704
Richard Weeks
Dallas, TX
REALTOR®, Broker

Julissa,

Interesting how state law differs.

Here in Texas we have two statutory estates, homestead and community property.

Also here there is no such thing as legally separated.  You are either married or divorced.

Jul 04, 2010 04:24 PM #1
Rainmaker
1,468,618
Donna Harris
Donna Homes, powered by JPAR - TexasRealEstateMediationServices.com - Austin, TX
Realtor,Mediator,Ombudsman,Property Tax Arbitrator

Also in Texas, you can buy a property without the other spouse on the loan or title on a conventional loan, though I believe FHA will still require both have credit pulled and looked at, but like in NC, they cannot sell it without the spouses' signatures... even in non-community property where the spouse has absolutely no interest. The spouse still has to sign acknowledging the sale.

Jul 04, 2010 04:32 PM #2
Rainmaker
687,612
Dan Edward Phillips
Dan Edward Phillips, Humboldt and Del Norte Counties, CA - Eureka, CA
Humboldt and Del Norte Counties, CA

Thanks Julissa, it is nice to be informed of what other sates are doing. 

Jul 04, 2010 05:33 PM #3
Rainer
321,367
Russel Ray, San Diego Business & Marketing Consultant & Photographer
Russel Ray - San Diego State University, CA

Ah, marital interest. One of the many, many reasons why people of the same gender want to marry in all states. On the other side of the coin, though, if one has a marital interest, that also means that there's going to be a messy divorce if that ever happens.

Jul 08, 2010 09:42 PM #4
Anonymous
Nick
The trouble is I'm still waiting to get a divorce here in Cumberland county after nearly 2 half years. The family court system is a joke, I called the NC court system in Raleigh to complain but they said the state legislature won't fund it adequately. Thanks NC! Another reason to leave this bumpkin state...
May 15, 2012 10:30 PM #5
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Rainer
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Julissa Jumper

Fayetteville, NC Real Estate
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