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Title companies are required as part of there job to request information in a real estate transaction. One of the most frequent requests involves requesting information on a parties 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 a property in his or her name alone, that persons 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 spouses 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 title. Therefore, whenever a married person owns property in Missouri in his or her name (rather than in a corporate entity or trust), that persons 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 lien holder. 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 for 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. 

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