What qualifies as a marital home?

Divorce Attorney Angela FoyQuestion:

My wife and I are not divorced or separated…yet. She wants to buy a house and says she needs me to sign a Deed of Trust. This sounds like a mortgage to me after a little research.

She said because we aren’t divorced, she needs me to sign showing that I understand that she is buying the property and there is no legal or financial tie back to me. Is this true? Should I sign it?

Answer:

I would be very careful about signing anything before you have an attorney in your jurisdiction review it and advise you as to the potential consequences.  I do not practice in Missouri, so I can only speak in generalities.

In general, any property acquired prior to or during the marriage is marital property.  A few exceptions exist to classify separate property acquired by gift or inheritance.  So a new house and the associated mortgage are likely still marital property.

The document that she is requesting that you sign is most likely a statement of intent.  It would function like a post-nuptial agreement stating that you both intend this house and the mortgage to be separate property.  It may never be an issue; if she never defaults on the loan, then the mortgage lender would never need to look to another pocket for the payment.

However, if she does default, the mortgage lender is likely not bound by your statement of intent.  You would then need to try to enforce the agreement in court, and your remedy would be seeking repayment from your wife, assuming she could afford to repay you.  This could be very costly to you.

The acquisition of the new property may also have a significant effect on the property division if you ever do get divorced or legally separated.  Of significant interest will be whether the money that she used to acquire the home, such as a down payment is marital even though the house and the mortgage may not be.

You should contact a domestic litigation attorney licensed in Missouri immediately to explore your options.  Cordell & Cordell has attorneys that are licensed and located in Missouri, and they would be happy to discuss your case with you.

 

Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. 

 Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.

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