MARITAL WAIVER IN MISSOURI
Title companies are required as part of their job to request information in a real estate transaction. One of the most frequent requests involves requesting information on a party’s spouse, or even worse, their ex-spouse.
Parties rarely understand why this type of information is necessary, so we thought we would provide some basics in regards to spousal rights in Missouri.
It is easy to understand that when both spouses jointly own a property (in an arrangement known as tenants by the entirety), both spouses must sign off on paperwork to sell or mortgage the property.
However, even when one spouse owns property in his or her name alone, that person’s spouse must consent before he or she can convey (sell) or encumber (mortgage) the property. This is because under Missouri Revised Statute 474.150 “any conveyance of real estate made by a married person without the written expressed assent of his or her spouse is deemed to be in fraud of the spouse’s marital rights.”
When this situation arises, a title company will typically ask that a spouse not on title execute a Marital Rights Waiver, which states that a particular transaction will not be in fraud of his or her marital rights. Failure to obtain a Marital Rights Waiver, or its substantial equivalent, can become a defect on the title. Therefore, whenever a married person owns property in Missouri in his or her name (rather than in a corporate entity or trust), that person’s spouse must consent to transactions involving the property. In the event of divorce, property owned in an LLC by a married person is treated as a marital asset regardless of waivers for purposes of this article.
As far as a lender is concerned, a Marital Waiver is necessary where the spouse acknowledges a lien on the subject property, subordinating their interest in the real property to the lienholder. In Missouri, a spouse must either be on the DOT or sign a waiver. Lenders prefer to have both spouses on the Deed of Trust.
So what about ex-spouses, why do title companies care about them? This can be for a variety of reasons. One typical reason is that the owner was married when he or she acquired the property, but later got divorced. While the divorce is final, it may not be fully documented in the land records- the records may show that title remains vested in husband and wife. Therefore, title companies usually seek documentation (a divorce decree or other court order) showing that the property was awarded to one spouse or the other in the divorce.
Sale of Solely Titled Real Property During Marriage or Divorce
The sale of real estate during a divorce can be a challenge. Each spouse may have a different idea of what price is best to list the property, what work should be done to get the property ready for sale, and even which real estate broker is best to list the property. In addition to the disagreements which may arise regarding selling jointly owned property, other challenges may arise if only one spouse holds title to the property. While these unique circumstances exist whether a marriage is intact or spouses are divorcing, conflict is more likely to arise during a divorce.
Challenges of Selling Solely Titled Property and Premarital Assets
Solely titled property may have been purchased before or after the marriage. It is less common to encounter property purchased after the wedding that is solely titled in only one spouse’s name. More often, one spouse owned the property prior to meeting the other or one spouse may have even purchased the property in the hope that the couple would one day reside there together. Whether the purchase occurred before or after the marriage, it may not be as easy for the titled spouse to sell the property as one would think, as the consent of the other spouse will almost always be required to complete the sale.
The Marital Value of Solely Titled Property
When one spouse purchases property while married, there are several ways a marital value can attach to the property. If joint funds were used to purchase the property, but for whatever reason, the couple only places the property in one spouse’s name, the property is marital, meaning the value of the property belongs to both spouses regardless of how it is titled. If it can be proven that independent, non-marital funds of one spouse were used to purchase the property during the marriage, there may be some non-marital component, but any increase in value of the property will likely be marital. Most buyers would purchase real property with a mortgage. Even if the mortgage is only held in one spouse’s name, if payments are made on the mortgage using income gained during the marriage, a marital component is again applied to the value of the property. There are various other ways a solely titled property purchased after marriage may hold a value to a non-owner spouse; these are just some examples.
Similarly, a marital value can be assigned to a property owned by one spouse prior to the marriage. Any increase in the value of the property during the marriage is a value that now belongs to both spouses. This increase in value may have been the result of paying down a mortgage during the marriage or the increase in market value. As a side note, if the spouse who owns the property deeds the property to both of the spouses after the wedding, the entire value of the property then belongs to the marriage/both spouses.
The Case of Uncooperative Spouse in Solely Titled Property Sale
Because there are so many ways a non-owner spouse may hold an interest in some portion of solely titled real property, it is often very difficult for the owner to sell the property without the consent of the non-owner spouse. Most title companies will require the non-owner spouse to sign a spousal waiver, waiving their interest in the property, in order to complete the sale. It is not uncommon for the non-owner spouse to refuse to sign the waiver, preventing the other spouse from selling the property. All hope is not lost. If compelling reasons exist, the owner spouse may petition the court to order the sale of the property before the divorce is complete, allowing the property to be sold.
Other Frequently Asked Questions on Premarital Real Estate
Is a house bought before marriage marital property?
Marital property covers ownership acquired during the marriage and is subject to division in a divorce. However, a marital value can be assigned to a property owned by one spouse prior to the marriage. Any increase in the value of the property during the marriage is a value that now belongs to both spouses.
Can I be forced to sell my home in divorce?
Yes, the court has the authority to force you to sell your home. If one spouse is not able to buy out the other spouse’s interest in the house or the parties cannot agree on a value of the house, the only fair and simple way to split the equity is to sell it.
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