I am in the process of getting a divorce. We are selling our house. Can I still buy another house even though the divorce is not final?

Asked on May 26, 2009 under Family Law, California

Answers:

B. B., Member, New Jersey Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

I'm not a California lawyer, but in most states, once the divorce case is actually filed with the courts, or both sides sign a property settlement agreement, that's the cutoff date, and property (and debts) either party gets after that are separate, and not usually subject to being divided up.  You need to check with your attorney, based on all the facts of your own case, though, before you start the process of buying a new home.  If you don't have a lawyer, one place to look for one is our website, http://attorneypages.com

There may be a practical problem, however, because if, for example, your spouse files the complaint, and you don't file a counterclaim, and then your spouse withdraws the complaint, you are back in a marital property situation.  While you can protect yourself from that by filing a counterclaim, so the case goes on whether your spouse changes his or her mind or not, lenders are aware of this, and you might have trouble getting a mortgage until the divorce is final -- and you can prove it to them.


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