So, now that we have covered why a spouse may be required to sign a deed or other transfer documents even when they are not specifically listed on title, let’s look at how we can help our clients prevent a marital interest from attaching to real property in the first place.
Have you ever heard of a Free Trader Agreement? Perhaps you have heard of such a thing, and you know all there is to know about them, or perhaps you have never heard of a Free Trader Agreement in your life. Either way, stick with me here!
Have you ever had a client ask you, “My wonderful, dedicated agent, I am currently separated from my spouse, but I would still very much like to purchase a home without the joinder of my spouse, can I do that?”
Since we all now know how marital interests in real property work (see my previous blog post!), it is important to understand how we can help our clients avoid marital interests from attaching to real property they purchase when they may be estranged or separated from their spouse.
A Free Trader Agreement allows current spouses to purchase, acquire, or hold property non-inclusive of their spouse (or any potential marital interest that spouse could have) while simultaneously allowing them to sell, convey, transfer, dispose of, assign, mortgage, or otherwise encumber real property thereinafter acquired non-inclusive of their current spouse.
Because there is an automatic marital interest in real property in North Carolina, most lenders as well as Title Companies will require some form of agreement be recorded with the Register of Deeds of the county where either spouse wishes to purchase real property (without the joinder of their spouse). While some spouses may have prenuptial agreements, antenuptial agreements, or separation agreements which may suffice in preventing a marital interest from attaching IF RECORDED, it is important to note that most prenuptial agreements, antenuptial agreements, and/or separation agreements contain personal information or other detailed information that spouses may not want to be reflected and made available via public record (Register of Deeds). In those instances, and in most instances when dealing with separated spouses, we suggest that these clients sign Free Trader Agreements.
It is important to note that Free Trader Agreements should reference specific North Carolina General Statutes, so consult with your trusted Real Estate Closing Attorney to make sure your clients are protected when making one of the biggest purchases of their life while simultaneously going through a major life change such as a separation or divorce. Keep this information in the forefront of your mind when dealing with separated clients and you’ll be able to Rest Easy.