Marital Rights in Missouri. A title companies perspective
Several areas often require delicate handling when requesting information. One of the most frequent involves requesting information on a party’s 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 person’s 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 spouse’s marital rights.
When this situation arises, we typically ask that a spouse not on title execute a Marital Rights Waiver, which essentially states that a particular transaction will not be in fraud of his or her marital rights. The failure to obtain a Marital Rights Waiver, or its substantial equivalent, can become a defect on title. Therefore, essentially whenever a married person owns property in Missouri in his or her name (rather than in a corporate entity or trust), that person’s spouse must consent to transactions involving the property.
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, we 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. Hopefully, the property was awarded to the current owner. Another issue may relate to child support payments. But that will be for another day….
For the “unmarrieds” out there, this link on tips for unmarried couples buying property together is helpful