Legal Question in Real Estate Law in California

Re: purchasing a home

I assume you mean "living apart" and not "legally separated" in the technical sense. If you are legally separated, that's equivalent to being divorced for property purposes.

Whose money are you going to be using? Whose credit? If you are absolutely sure that all the money is your separate funds and not community funds, and that your lender understands the situation completely and is relying on your credit, and you can prove all this to the satisfaction of a judge or jury later on if challenged, you are probably OK to proceed with a purchase without your wife's knowledge or consent.

If there is any possibility that you'll be using community money or credit for the purchase, you run a big risk of challenges when the divorce takes place unless you have your wife quitclaim her possible interest to you at the closing; in addition, it would be very helpful to have a written agreement with her as to how this house deal will affect your respective rights when there is a final property settlement of your respective community property interests. Otherwise, she may be entitled to offsetting value in the settlement.

Note: earnings of spouses before beginning to live separately is community property, regardless of which spouse earns it, but after a more or less final break-up in the cohabitation aspect of marriage, the earnings are no longer community property, they are separate property.

Re: purchasing a home

If you are not legally divorced, as a practical matter, the title company and probably the lender will require your wife to sign an interspousal quitclaim deed at the time of close of escrow. She doesn't necessarily have a legal interest in the property if you are legally separated, but title companies and lenders are exceedingly cautious when it comes to prospective interests such as hers.

*Due to the limitations of the LawGuru Forums, The Gibbs Law Firm, APC's (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided is general and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.