It is not uncommon for one spouse to move out of the house while undergoing a divorce. Especially if the divorce is dragging on, the spouse renting an apartment may start to inquire about purchasing a home. Spouses begin to ask counsel if it is financially wise, or even allowed, to buy a house right in the middle of the divorce.
There is no rule against buying a house before the divorce is over. As in all real estate purchases, it is primarily a question of being approved for the loan. A divorce creates additional challenges that largely require cooperation from your soon-to-be ex and his or her counsel.
Generally, to secure the loan during a divorce, the lender will require written proof that you and your spouse have agreed that, as part of the settlement, you have been exclusively awarded the down payment funds that you are putting down on the house. If you and your spouse cannot agree that the down payment is an “advance” award to you, a lender will be hard-pressed to provide the financing.
If one spouse continues to be unreasonable, the spouse seeking to buy a house can seek the court’s help in compelling his or her cooperation. However, where one spouse wants to assume the marital home and the other wants to purchase a new home, their counsel should be able to draft agreements to ensure that that happens.