Can You Buy a House Before Your Divorce Is Final in Massachusetts?

I worked with a client who had sold his home in Kingston, MA during the early stages of his divorce. After renting for about a year (and dealing with loud upstairs tenants and rising rent), he was ready to buy again.

There was just one issue.

He wasn’t officially divorced yet.

So the big question became:

Can you buy a house in Massachusetts while your divorce is still pending?

The Automatic Restraining Order Most People Don’t Know About

In Massachusetts, once a divorce is filed in Probate and Family Court, an automatic financial restraining order is issued.

That order generally prevents either spouse from:

• Buying property

• Selling property

• Transferring assets

• Taking on new financial obligations

Without agreement or court permission.

Many people don’t realize this exists.

Before moving forward, I suggested he speak with a divorce attorney to understand what was allowed. (I am not an attorney, and this is not legal advice. Always consult a qualified divorce attorney for your specific situation.)

When Can You Buy or Sell During a Divorce?

There are exceptions.

A real estate purchase or sale may be allowed if:

• It’s in the ordinary course of business
  (For example, one spouse is a builder or investor)

• There is a court order authorizing it
  Courts often address the sale of a jointly owned home, but they may also authorize a purchase.

• There is a written agreement between both spouses
  This agreement typically states that the newly purchased property will not be considered a marital asset subject to division.

That last point is critical.

Without a court order or written agreement, buying a home could violate the automatic restraining order. In the worst-case scenario, a judge could later determine that the new home is a marital asset and include it in the division of property.

Who Should Draft the Agreement?

My client asked whether his real estate attorney could draft the agreement since he wasn’t working with a divorce attorney.

The answer we received from his real estate attorney was that this is something a divorce attorney should handle.

The language needs to be precise and protective. Trying to shortcut that step can create much bigger problems later.

The Mortgage Complication

Even if you are legally allowed to purchase, there is another hurdle: financing.

Most lenders require a finalized divorce agreement before issuing a mortgage commitment. They need clarity on:

• Child support

• Alimony

• Health insurance obligations

• Division of marital assets

These affect your debt-to-income ratio and overall qualification.

In my client’s case, he was able to obtain a preapproval before the divorce was final, but the process took longer and required significantly more documentation.

It wasn’t impossible. It just wasn’t simple.

Takeaway Tip

If you are considering buying a home before your divorce is finalized:

• Speak with a divorce attorney first.

• Obtain court permission or a written agreement.

• Make sure the agreement clearly states that the new property is not a marital asset.

• Talk to a lender early to understand what documentation will be required.

Getting divorced is emotionally exhausting. The last thing you need is a real estate transaction that creates additional legal or financial exposure.

If you’re navigating divorce and real estate on the South Shore, I’m always happy to connect you with trusted local attorneys and lenders who can help you protect yourself before you make a move.