Can I Buy A New House Before I Get Divorced?

A central component of a divorce is the division of property. Typically, the division of property can be settled through attorneys. If it cannot, then the decision making goes to the court and a judge will make that determination. 

Oregon family law states that the property and assets that are obtained during the marriage are presumed to be “of equal contribution.” This means that when a divorce takes place that these assets are typically divided equally between parties. There are exceptions, of course. Inheritance, for example, are often looked at and divided differently due to the fact that the presumption of equal contribution is rebuttable. 

But this assumption of equal contribution is where things can get tricky when it comes to purchasing property before a divorce is finalized. So, what do you do if you’re not the spouse who will be staying in the family home, or if your home family home is being sold? You need a place to live? What are your options? What do you need to know in order to successfully navigate this situation and move forward with your life?

Important questions to consider when purchasing a home during a divorce

Are you sure that you can afford your new mortgage post-divorce?

Do you have absolute clarity about what your financial situation will be after your divorce? During your marriage, was it a dual income partnership? Did you work part time or full time? Were you a stay at home parent, or were you the primary breadwinner? These things, of course, will affect your financial standing after your divorce. 

Perhaps you’ll be responsible for spousal or child support. Though we entirely understand your desire to move on with your life, it might be in your best interest to have a clear view of your financial landscape before taking on any new investments or debt. 

It’s even possible that the value of this new asset could affect the division of property during divorce proceedings. If you have certain expectations of how your existing assets should be divided, then it might be best to hold off on making a home purchase. 

What funds are you planning to use to purchase this new home?

If you were to use funds that were earned during your marriage or money that is from an account that you share jointly with your spouse, then this may turn your new home into a marital asset. 

Could your spouse claim partial ownership? Maybe. 

Remember, the presumption of equal contribution apples to property and other assets that are acquired during the marriage. Technically, if your divorce is not finalized, this opens up your new home to potential legal vulnerability. If the purchase of this property isn’t handled correctly, it’s possible that it could be considered a marital asset and the equity divided between your soon to be ex-spouse.

If, after weighing the decision carefully, you still want to buy a house before your divorce is finalized, you should take steps to make it less likely that your spouse can claim partial ownership of the new home. Do not try to conceal this or any other large purchase during your divorce proceedings. They will be discovered, they will be subject to scrutiny, and acts seen as being dishonest may influence the court’s perception of your character.

Are there steps you can take to make it possible for a home purchase during divorce?

In short, yes there are things that you can do to protect yourself and your investment if it’s a must that you purchase a home before your divorce has been finalized. But there is a risk. Know that even if you take these steps that there are no guaranteed outcomes, only safer ways to approach the situation.

Will your spouse make an agreement with you about the new home? Get it in writing!

Your legal counsel can help you with securing a legal property agreement with your spouse. This legal property agreement is designed to help state that this new property is owned solely by you and that your spouse has no claim of co-ownership. If your spouse refuses to sign? Well, that’s a red flag and indicates that waiting until after the divorce is finalized before purchasing the home. Their refusal makes you vulnerable to them making the claim that this is a shared asset. 

Can you use money that is entirely separate from your spouse to make this purchase?

Do you have separate funds from an inheritance? Credit card names that are solely in your name that only you have made payments on? A separate bank account? They could still be subjected to consideration as shared assets. It is vital that before moving forward with anything related to a new home purchase during a divorce — appraisals, inspections, down payments, anything at all — that you can prove you’re the sole investor.

Do you have separate bank accounts or credit cards? You should create and get them before moving forward with pursuing any aspect of this home purchase.

Similarly, we advise that any documents related to the new home — documents pertaining to your realtor agreement, offers made on new homes, contracts, taxes, anything at all in writing on this new home — be signed by you and not your spouse, so as to protect your new investment from scrutiny. 

So, should you buy a home before a divorce is finalized? It depends!

The only way to know for certain as to what is best for you and your family is to have trusted legal counsel who can make the best possible recommendations based on the information that you share.