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House can be sold without consent of ex-husband

July 21, 2017
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Mr. Feichthaler:

I was married in 2010 and purchased a home in Cape Coral. It was in my own name, and I used my family's money to purchase the house. Later, my husband and I moved into the house. Before moving in, we prepared a document saying that my husband gives up all rights to the home, including any homestead rights. It also said that if we ever get divorced, he would not have a right to the house.

Well, in 2016 our marriage did end, and we got divorced. Do I need my ex-husband to agree to a sale if I decide to sell the house?

Kristy C.

Dear Kristy,

I am sorry to hear about the divorce. Planning for future family strife is one of many issues to consider when taking title to a home. In your case, since you were responsible for the funds of purchase, you were right to take title in your name. While homesteaded at this property, your husband would have rights to live there, and you could not sell the house without his consent. However, since you have subsequently been divorced, it can no longer be his homestead. Therefore, you should be able to mortgage or sell the property without the consent of your ex.

The main exception would be that the divorce court ordered the house be transferred to your husband and that this didn't occur, which would cause some issues in transferring title. As always, you should check with an attorney to ensure your situation allows for your immediate sale of the property under your unique circumstances.

Eric P. Feichthaler has lived in Cape Coral for 28 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continued his service to the community through his chairmanship of the Harney Point Kiwanis Club KidsFest from 2011-2015, which provides a free day of fun and learning to thousands of Cape Coral families, and funds numerous scholarships. He has been married to his wife, Mary, for 14 years, and they have four children together. Recently, he earned his board certification in Real Estate Law from the Florida Bar. He is also a Supreme Court Certified Circuit Civil Mediator.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.



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