By Lydia Blair
Special Contributor
Your friendly title company representative wants to know if you’re married. How flattering, right? Not exactly. Asking about your marital status isn’t a come-on or a pick-up line. At least not when it comes to a real estate sale.
When someone in a real estate transaction – either the buyer or seller – has been married, is getting married, is separated, is divorced, or is in any past or present state of marriage, it can affect the sale of a property. Well, sure, it can affect your mental state, too. But it also affects the sale process in other ways.
When married and selling a property, both spouses are typically required to sign closing documents. This applies even if the property is in the name of only one married seller or was owned by only one spouse before marriage.
Texas laws focus on protecting the homestead rights in a marriage. Basically, our governing forefathers wanted to ensure that one spouse didn’t sell the family homestead without the knowledge of the other spouse. And if the property isn’t the couple’s homestead, the spouse would need to sign a non-homestead affidavit before the sale. They want to safeguard a spouse’s rights to their home. Seems fair in my non-legal opinion.
Also, because Texas is a community property state, our laws presume that real estate is community property during a marriage. The title company wants to make sure the spouse doesn’t have other rights to the real estate. When the seller is married, there typically isn’t a big issue with getting a spouse to sign paperwork. They just come to the closing together.
But often sellers don’t realize how important it is. Failure to disclose that you’re married can cause delays in the closing process. Additional documents may need to be drawn and some paperwork may need to be changed or updated.
Realtor Rob Schrickel with Ebby Halliday recently attended a closing where his seller casually mention that the wife was packing. While he knew the seller had a partner, he didn’t know that they had gotten married. Schrickel recalled the awkward moment when the escrow officer paused and asked, “What? You’re married?”.
When that happens, the screeching noise you may hear is the sound of the brakes bringing your closing to an abrupt halt. These kinds of surprises regarding marital status inevitably cause delays and could lead to litigation. “Fortunately, we were able to reach the wife and she was able to come in and sign some documents pretty quickly,” says Schrickel. “It turned out okay and we ended up closing on the sale.”
But it isn’t always that easy. Especially in those sticky situations where an estranged spouse or ex-spouse needs to sign documents in order to complete the sale. Property ownership isn’t always tied up in a neat bow even when people legally divorce. Release of liens aren’t always recorded and deeds aren’t always updated properly.
The title company handling the sale will want to review the divorce decree or settlement agreement that has been issued by the court. They aren’t being nosy and don’t care about who go what except where it comes to the property. If they don’t have proper documentation that awards the property to one party, then an ex-spouse might be asked to sign paperwork in order to sell. If the divorce is still pending, both parties must sign the closing documents. That’s never any fun.
When buying a home, marital status isn’t as complicated, but it can still matter. Just one spouse can purchase a property. However, if you’re getting a mortgage, your lender may require your non-borrowing spouse to also sign some documents.
If you’re purchasing a property while going through a divorce that isn’t yet finalized, talk with an attorney. Run, don’t walk, to a real estate or divorce attorney for advice on how to proceed while protecting your future home — unless you want to deal with your ex when you sell some day.
If your marital status has changed in any way since you first purchased a property, always be prepared to provide documentation of ownership before selling.
The opinions expressed are of the individual author for informational purposes only and not for the purpose of providing legal advice. Contact an attorney to obtain advice for any particular issue or problem.
