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
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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
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
The attorney assisting you in your divorce should be able to guide you through
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 www.thinkglink.com