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Can I buy a house while going through a divorce in San Jose, CA

San Jose, CA |

I am the petitioner and I filed for divorce on June 1st, 2012, the respondent lives 4 hours away and has already informed me they will not show up to any CMC (they did not show up in September at the first CMC). We have filed for an uncontested divorce and have an agreement outside of court and I alone have already filed FL-140, 141, 150, 160 and FL-144 Stipulation and Waiver of Final Declaration of Disclosure on 1/29/13. Now I set another CMC for trial (not really sure why another one is needed, possibly to get final judgement) and I was prequalified yesterday for a loan and would like to know if it is ok to buy a house with someone else. We have no assets to divide or bank accounts or money.

Attorney Answers 3


  1. There is no law prohibiting your buying a house without your soon-to-be-ex spouse. But you will need their cooperation. You will likely need to have them sign a Quit Claim Deed, waiving any interest in the new house, before escrow will close.

    Legal disclaimer: 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. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.


  2. In terms of a pure legal analysis, there is no legal prohibition against you buying a house while you are in the middle of a divorce. The problem you have is that the lender will not fund without your current spouse executing an Inter-Spousal Transfer Deed to you in regard to this transaction. Perhaps, your ex will sign a Dissolution and Marriage Settlement Agreement resolving any and all issues as between you and her. Otherwise, there is no easy way to get around the lender issues I've described above. There are ways you could perhaps end around the transaction, but you still will be subject to a scrutiny by the court concerning the origin of the funds you used to adquire your interest in the subject property...probably a can of worms. Why don't you first see if you ex will cooperate.

    I hope this is helpful

    John N. Kitta
    Fremont

    This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.


  3. I agree with the above attorneys' advice

    the information provided above is for information purposes only and you should consult an attorney for specific answers to your case

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