How soon after Sa signed to move out?


#1

My husband and I are reaching the home stretch of negotiations in agreement on a SA and he has put an offer on a home for himself, which was accepted. Our plan (and we both have attnys) is for him to close on his new property and move within a few days of that- and he will deed the current home to me in the same SA. But he and his attny would like for me to go ahead and sign the agreement and a Memorandum of Understanding soon (weeks ahead) because he says he needs to file the MoU to be allowed to buy (in Johnson County) as a free agent while married. (the financing should not be an issue at all, and he is preapproved for the mortgage) Meanwhile, my own attny says No, to wait until just a day or two before his closing and move to sign the documents, that if we continue to live together for weeks after signing a Separation Agreement, that he might be able to declare it null and void if he were to choose to… I am wondering what your recommendations are.

One other question, in order to not incur taxes on the home that is going into my own name soon, is it required to have a clause in the SA referencing Section 1041 of the Internal Revenue Code, my own attny did not include one, and yet I have seen such in your sample agreements.

Thanks!
ACN


#2

I would suggest including the tax provision.

As for the physical separation, there is case law that says if separation is impending at the time of the agreement and does in fact happen, the agreement is valid as a separation agreement.


#3

Thank you very much. So I suppose it would be safe enough to go ahead and sign a bit sooner given that my husband clearly intends to move out by a certain date.
I appreciate your feedback on this as well as on the question of IRS taxes on property.
ACN


#4

I do not see the harm in signing now if the move is imminent.