Many divorcing couples don't have sufficient financial resources to consider buying a new home while the divorce process is happening. But for those persons fortunate enough to have good credit and what appears to be adequate income to buy a new house before the divorce is final, the home purchasing process can be a rocky road.
Colorado law presumes that all property purchased by either spouse during the marriage (i.e. until the final divorce decree is entered) is "marital property. Marital property is subject to "equitable division" in a divorce case. If the husband purchases a new home to live in while a divorce action is pending, the title to the new home might be in his name only. But the court in the divorce case still has the power to order that the title to the new home be placed in the wife's name; or that the new home be sold; etc. This is because while the title might be in the husband's sole name, the new home is still considered "marital property," subject to the court's power to make orders concerning the title.
During the temporary orders period when a divorce action is pending, the court may enter temporary orders for maintenance, child support, debt payments, and other matters. If a divorcing home buyer qualifies for new home financing on one day, his or her financial picture may change dramatically the next day if there is a temporary orders hearing allocating child support, maintenance, and/or debt. The temporary orders are not binding on the court or the parties for purposes of the final resolution in the divorce case, so the parties' financial picture can change again once permanent orders are entered.
Marital Property - Increase in Value
Some divorcing couples reach an agreement allowing a spouse to buy a new home, while the divorce is pending. However, an agreement that a person can buy a new home, is not the same thing as an agreement concerning disposition of the new home. In order for the agreement allowing a spouse to buy a new home to be an agreement that truly allows the home to be excluded from the divorce property division process, the agreement: (1) must be in writing and signed by the parties; (2) approved by the court; (3) contain terms concerning the title and the equity; and (4) must be signed only after there has been a financial disclosure exchange. Otherwise, the agreement may be deemed invalid, and the increase in the value of the new home could be considered "marital property" subject to division by the divorce court.
Marital Property - Furnishings
Furnishings that are purchased for a new home are "marital property," if the furnishings were purchased prior to entry of the divorce decree. Consequently, the divorce court retains the power to equitably divide the furnishings, unless the parties have a written, signed agreement approved by the court, excluding the furnishings from the marital property division. The agreement should be signed only after there has been a financial disclosure exchange.
It is possible to buy a new home while a divorce is pending, but the process should be carefully negotiated and approved by the court. Otherwise, the new home and its furnishings may become another set of assets for the divorce court to divide.
Gregg A. Greenstein is a shareholder in the law firm of Frascona, Joiner, Goodman and Greenstein, P.C., a Colorado law firm. His practice areas include Real Estate, Litigation, Family Law, Divorce, and Adoption. He can be reached at contact Gregg Greenstein.
Disclaimer -- Content is general information only. Information is not provided as advice for a specific matter, nor does its publication create an attorney-client relationship. Laws vary from one state to another. For legal advice on a specific matter, consult an attorney.