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Ownership of Property In Escrow Questioned During Divorce

Ask the Real Estate Lawyer: Real Estate Law Q&A

REM #LAW 747

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A ThinkGlink reader had property in escrow when he got married and closed on the property after the wedding. Now he is divorcing his wife and is wondering if this property is part of their joint property. Ilyce and Sam explain how property is divided during a divorce.

Q: I opened escrow and had my home deeded to me as a single man. Then I got married (after the deed was signed and notarized). After the wedding, we closed escrow.
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Now I am going through a divorce. My ex-wife is claiming that our home is community property. I am claiming that my house is mine and only mine.

The escrow officer never asked me if I was married when it closed. Escrow followed escrow instructions as set when escrow opened. Was it my duty legally to inform escrow I was married at closing or is escrow legally to ask? Is it illegal to hold title as a single man while married?

A: You purchased a home and while you were buying and closing on the purchase you got married. So you actually closed on the purchase of the home once you were married.

Even if you are married, you can own title in your own name. You can also own title in the name of a corporation, partnership, limited liability company or even in a trust.

How you hold title to property isn’t the driving issue. The real issue is whether your opening escrow while you were not married and then closing on escrow once you were married gives your spouse rights to the property.

In some parts of the country, buyers and sellers conduct a closing of the purchase of real estate through an escrow agent. The escrow agent prepares the documents for the closing and assists both the buyer and the seller to close the transaction. The escrow agent, however, does not represent either party in a fiduciary capacity. That is to say, the escrow agent is only obligated to follow the instructions in the agreement to close the transaction and does not have a duty to advise the buyer or the seller as to the merits or pitfalls of the transaction.

As a general rule, property that is purchased during a marriage might give the spouse rights in that property. That’s what your spouse is probably claiming. If money from the marriage was used to maintain the home, your spouse will probably prevail in the claim that the home is marital property. That would give your spouse the right to at least some of the gain from the sale of the home.

The attorney assisting you in your divorce should be able to guide you through this issue.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website




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