Dear Quentin,
My husband and I have been married for 21 years in California. We have filed for divorce. We are supposed to work mutually with a mediator to determine the final settlement. We still have six months to wait before anything can be finalized. We are not on great terms so things could get interesting.
I learned that he is planning on making an offer on a home. I don’t think he has the cash to use as a down payment unless he uses the investment or retirement accounts he holds. He has terrible credit. I honestly don’t know how he plans to pull this off unless he has another borrower helping him, a girlfriend or family member.
If he goes through with the purchase of this house with possibly another individual am I still entitled to half of something here? What if he is using his retirement or investment accounts? I know I am entitled to half of those. Any advice on what I should do in this situation?
Not-Yet Ex-Wife
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Dear Not Yet,
If your husband uses marital funds — money that was acquired during your marriage, including those from a retirement or investment account — you would have a claim on half of this property or half of his share, and half of his share of any price appreciation. I would caution him about making such a deal and, as a general rule, caution you about paying too much heed to secondhand information. It would seem like a reckless and foolhardy move on his part. It’s illegal to hide marital assets prior to a divorce due to “automatic temporary restraining order”.
According to Bremmer, Whyte, Brown & O’Meara: “A spouse seeking to buy a home must generally: Provide the other spouse with notice of the purchase at least five business days before it is to take place; obtain the other spouse’s written consent, or, failing this, an order of the court; and prepare to disclose all information and documents used for the purchase, including all information regarding the source of the funds to be used for the down payment and mortgage, the loan application, the sale agreement and closing documents.”
Trying to make such a purchase while a divorce is ongoing can get messy. In this 2016 case in Fresno County, a divorcing man attempted to purchase a home before his divorce was finalized, and claimed that his then-girlfriend had agreed to take the title to the property and then deed the property back to him when the divorce was complete. However, oral real-estate contracts are not enforceable. So guess what happened next? His girlfriend refused to quit-claim the property to him, and insisted the money he contributed towards the purchase of a property was a gift.
Rather than wait for your husband to make a big mistake, it would be more productive to give him fair warning — assuming what you heard is true — and avoid any unnecessary and expensive legal wrangling down the road. Divorce is an emotionally taxing and turbulent time for most couples, and people don’t always act appropriately or even in a way that is normally in adherence to their usual character. Remember the way you wear, do yourselves both a favor, and speak up.
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