Trust vs Free Trade


#1

If you have a properly drafted Separation Agreement, you should not need a free trader agreement. You should have your mortgage company review your Separation Agreement to see if it is sufficient.

Who would be holding the property in trust?

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#2

I would have it in my name as trustee.

I did not want to provide my separation agreement to mortgage company or closing atty. Does the Free Trader Agreement need to be called that exact name or will a document titled “Memorandum of Agreement” work? Also, what specific language needs to be in the agreement?

Thank you.


#3

I think it’d be usually listed as a “Free Trader provision” or something similar to that, if it was properly drafted. Most SA&PS drafted by attorneys (at least in this state) have those provisions as part of their default template, I’m guessing it’d be the same language (or substantially the same) for 99% of separations.

And if it is in your SA&PS, the mortgage company and closing attorney will need to see it, they will not simply take your word for it.

I don’t know whether it’d be possible to have the relevant section in your SA&PS (if it’s there, if it isn’t, get an attorney to draft it!) reproduced separately from the SA&PS, and then the duplicate portion signed and notarized by both spouses. Whether that would be sufficient, an attorney would need to make that determination.


#4

Generally the Memorandum of Agreement is not sufficient, but you could give it to the mortgage company and see what they do. I do not think the trust would work, you are techinically purchasing the property. I do not practice real esate law and so you may want to consult with a real estate attorney for a more exact answer to that question.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#5

I am a confused now on what type of document I need to provide so I can purchase property solely. I do not want to provide the Separation Agreement - too much personal information. Where can I find the exact language to draw up this document?
Thank you.


#6

I do not know of a website that provides the exact language for this document. You may want to contact the mortgage company or the closing attorney, it is likely they have one they can prepare for you at low or no cost.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#7

I have a separation agreement, but we are not divorced yet.
I am buying residential property.
I was told I need a “Free Trade Agreement” signed and notarized by me and spouse.
I am thinking of putting the property in a trust so the deed would not be in my sole name.
Do I still need the Free Trade Agreement if I put the property in a trust?
Thank You.