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Can I buy a house and take on a mortgage while my divorce is pending?

Asked over 2 years ago - San Francisco, CA

My divorce is due to be finalized by the end of 2009. My soon to be ex wife and I have already split our assets and have signed notarized, and filed the Marital Settlement Agreement. We are just waiting on the 6 month clock to run out in late November and then for the judge to declare the settlement final. My question is this: As per the automatic restraining orders that went into place when I filed for divorce, am I allowed to buy a new house by myself, and take on a mortgage against that house? What about including someone on the mortgage application with me who is not my soon to be ex wife?

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Attorney answers (2)

Steven Alan Fink

Reputation Level 20

Answered over 2 years ago. Real Estate Attorney in Newport Beach, CA.

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The Restraining Order prohibits you from transferring, hypothecating, etc. community or separate property without written consent of other party or court order except for necessities of life. Any reason why your soon to be ex won't give written consent? If she will, problem solved. If she won't, safe thing to do is get court approval.

The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.

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Richard Forrest Gould-Saltman

Reputation Level 18

Answered over 2 years ago. Divorce / Separation Lawyer in Los Angeles, CA.

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Unless you want to make your (and your co-buyer's) life more complicated than it needs to be, you should either

wait until your dissolution is final (when you say you're "waiting for the judge to declare the settlement final", has a JUDGMENT been entered yet?)

OR

get a separate agreement and order signed by your (soon-to-be, but not-yet) ex-wife to the effect that you are not using any community property to buy the house, you are not relying on her credit in any fashion to buy the house, her name will not be on any loan to buy the house, and she's waiving any claim that there is any community property interest of any sort in the new house

AND your escrow company will want a quitclaim deed from her as well.

Gould-Saltman Law Offices, LLP

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