Free Trader Agreements - What They Do and Don’t Do

When parties are married, they acquire certain rights in the real property of the other spouse, even when they are not a title owner.  Those rights include certain inheritance rights and equitable distribution upon divorce.  Spouses have the ability to waive these rights before marriage in a Prenuptial Agreement or during marriage using a Free Trader Agreement or Separation Agreement. If the marital rights are not waived in an Agreement, then a Judgment of Absolute Divorce will terminate them.

What does a Free Trader Agreement do?

* Waives all marital interest and rights to any property acquired in the name of the owner-spouse alone.  Owner-Spouse may borrow money on the property or sell it without the other spouse signing any paperwork

* When the owner-spouse passes away, the surviving spouse may not claim certain inheritance rights to property acquired after the Free Trader Agreement was signed.

* Owner-Spouse can sell, transfer or mortgage their separate property (property acquired before marriage) without the other spouse having to sign any papers or be involved in any way.

What does a Free Trader Agreement NOT do?

* If a spouse is on the title to the property, a Free Trader Agreement cannot be used to transfer that spouse’s interest.  A Power of Attorney is the appropriate document to convey a spouse’s titled interest.

* A Free Trader Agreement only applies to real estate and cannot be used to transfer personal property interests.

* A Free Trader Agreement does not apply to any interests or rights other than the specific marital interests in real estate.

Are you Separated or considering Separation?

The most common time that Free Trader Agreements are used is during a couple’s separation.  If you intend to acquire real estate during your separation, but before you are divorced, your spouse does not have to be a title owner on the property. Without a Free Trader Agreement, your separated spouse is going to be required to sign some of the loan documents.  However, with a Free Trader Agreement prepared by Irvine Law Firm, separated spouses can acquire and mortgage property prior to divorce without the consent, approval or signature of their separated spouse.