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TJ, Esq.
TJ, Esq., Attorney
Category: Family Law
Satisfied Customers: 12133
Experience:  JD, MBA
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I am separated since June 2012 after 32 years of marriage,

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I am separated since June 2012 after 32 years of marriage, never filed for divorce. I took nothing from our joint savings/checking, no furnishings, I don't want the house, I don't want anything, I wanted and have only my personal belongings. I've made a new life with another person and want to move on. Current rent situation is such that I want to buy a house. The bank (who has given a pre-approval to us) and the realtor have cautioned us about doing this. I've made an offer which has been accepted on the house. How much trouble am I in? Again, i took nothing but my own personal belongings.
Hello and thank you for allowing me the opportunity to assist you.

What reasons were you given by the bank and realtor for not buying?

When you ask how much trouble you're in, what exactly are you getting at? Do you want to back out of the deal? If so, was the offer accepted and do you have a signed contract? Or are you concerned that your spouse could cause you trouble? I suppose I just need a little clarification with regard to where you're going with your question.

Thank you.
Customer: replied 4 years ago.

The bank & realtor were concerned that my spouse would want interest in the property. He has the home we shared, no mortgage on it and it's worth approximately $50K more than what I am wanting to purchase. When asking how much trouble, I only meant in relation to what the bank/realtor's concern was. I do not want to back out of the deal.

Hi again. Thank you for clarifying.

Yes, it's quite possible that your spouse can make a claim that he has an interest in the property. His argument would be that your ownership interest is marital property since you're still married to him. So, if you own 50% of the house, then your spouse may claim that he is entitled to 50% of that (i.e., 25% of the house). That doesn't mean that he'd be able to just walk in. He wouldn't have any right to possess the house or use the house. But it means that if you were to divorce a couple of years from now, then he can claim that part of your house is marital property that should be split.

That's merely a possible argument, however. I am not stating that he would win that argument. He may ultimately lose that argument, but it may give you a big headache until it's resolved, and it may cost you quite a bit in attorney's fees. You have two arguments to counter your spouse's possible argument: (1) You likely have a 50% interest in your spouse's house, and you stated that it has no mortgage. So, you interest in that house is likely far greater than any potential interest in your new house since your new house has a mortgage. Accordingly, that gives you a lot of leverage. You would tell your spouse that if he goes after your new house, then you'll go after the old house. (2) You have the argument that any property acquired after separation (but before divorce) should be considered your separate property.

Because of those two arguments in your favor, I think that you'll likely be okay if your spouse were to cause a fuss about your new house and attempt to go after it. But the real question is whether it's worth the headache and expense of dealing with your spouse's arguments. It may be worthwhile to deal with it now before purchasing the new house by either divorcing or at least signing a written agreement as to all marital property, and specifically address the new house.

Does that answer your question? Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied. Also, your positive feedback is much appreciated.

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