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Am I entitled to receive my earnest money back ?

San Antonio, TX |

My offer has been accepted by the seller, loan ready to go but the title company does not want to close the deal because my final divorce is not signed yet. My loan has been underwritten and no problems so I am surprised. I was ready to close so I did not default. Will I get my earnest money back?

Attorney Answers 3


  1. Thank you for your question. Maybe another attorney will be able to shed more light on the matter, I am not sure why the title company cares about your, the buyer's, pending divorce. I can understand when you go to sell but that is a future matter of no consequence to the title company.

    Would you be able to have your soon to be ex sign a waiver? I think you may have a complaint against the title company, why did they not notify you of the matter in a time frame for you to remedy the situation.

    Seek direct consultation with an attorney as soon as possible. Well worth $250-$500 to have an attorney call and send a letter to the title company, may be enough to have them give you the money or move forward with the sale.


  2. Property acquired during marriage is presumed to be community property.

    Did your real estate agent know you were in a pending divorce action? Did your divorce lawyer know you were buying a house?

    Your contract needs to be reviewed by a real estate lawyer. Ask your divorce lawyer whether a separate property agreement could be used to salvage the deal. Also ask whether your wife would get an interest in anything you acquire before the divorce is final.

    Good luck.

    Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services. My Avvo posts are based on limited information provided and are not intended as conclusive legal advice.


  3. Is the issue with your lender as opposed to the title company?
    If you close before you are divorced, then the property will likely be considered community property and your husband will have an interest in the property. I suspect your lender wants the divorce to be final to make sure your husband has no claim to the property. At the very least, he would have to sign the deed of trust assuming you would want to proceed. As far as the earnest money: are you in the option period? Is there a financing addendum and is this related to your lender? You might want to have an attorney carefully review the contract to explore a resolution. I would look into it with an attorney very quickly.

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