Divorce and the Requirements for Valid Escrow Instructions for the Transfer of Title

At the Orange County Law Office of David P Schwarz we have litigated many cases dealing with divorces and the sale of real property involving escrow instructions and contracts. Please contact our office at 949 735 9266 or via the web. We can also be reached by email at dpslaw66@gmail.com.

A Divorce lawyer will make sure the escrow has a valid contract. An escrow involves the deposit of documents, money, and/or other items of value with a third party to be delivered on the occurrence of one or more conditions. Since either party is entitled to withdraw from a transaction at any time before there is an enforceable contract that is binding on both parties, a valid escrow is not established until there is an enforceable written contract between the parties.

A Divorce attorney will make sure there is a valid written memorandum of the contract sufficient to satisfy the requirements of the statute of frauds, and it must meet all of the usual requirements of an enforceable agreement. It must be supported by some consideration, such as the mutual promises of the parties to buy and sell. The contract may be in the conventional form of a purchase and sale agreement, an exchange agreement, an option agreement, or any other form that creates an enforceable contract under California law.

Escrow instructions as a binding contract. There is a sufficient contract to support the escrow if the parties submit mutual or matching written escrow instructions containing all essential terms in writing. In some cases, the parties may execute mutual escrow instructions in one document, with or without the help of the escrow holder, that they intend to be the written agreement of purchase and sale without the necessity of a separate document. When this process is used, the resulting document serves two purposes. First, under ordinary contract law principles, written escrow instructions that match with respect to all material terms will comprise the contract for the transaction. Second, matching escrow instructions will also serve as the instructions to the escrow holder for the consummation of the transaction.

At the Orange County Law office of David P Schwarz we will make sure that when each party submits separate written escrow instructions that match in their terms and contain the essential elements of an enforceable contract to sell real property, the combined instructions by themselves are a binding contract of sale between the parties. If the respective escrow instructions are not consistent or matching in any material respect, there is no contract.

A Divorce Lawyer will be able to ensure that oral escrow instructions are valid. Because escrow instructions themselves need not be in writing, when there is a written contract between the parties there is a valid escrow, even though separate instructions are oral. When the contract between the parties is not in writing, written instructions submitted by the parties may satisfy the statute of frauds. Therefore, when there is an oral agreement to sell real property, and instructions to the escrow holder are signed by only one party, the agreement can be enforced against the party who signed the instructions because the signature evidences the signing party's willingness to be liable for performing the contract.

At the Orange County Law Office of David P Schwarz we have assisted in many Divorce cases where escrow instructions were needed to transfer title. Please contact our office at 949 735 9266 or via the web. We can also be reached by email at dpslaw66@gmail.com.

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