As for the question as to whether or not you can get the first-time homebuyer credit, you should consult a tax consultant and couple that with the advice of your attorney.
You don't state enough information in your question. Do you rent now or do you own? If you rent, you will need three years total to purchase before you can qualify for the first time homebuyer credit. And since you are still legally married, that's a plethora of other questions that need to be answered.
If you'd like, I could refer you to some good family law and real estate law attorneys.
Keller Williams Realty
As a result of this I STRONGLY advise that you take back control of your life and financial affairs and complete your divorce! If he gets behind on the payments the lender could easily do a marital search and possibly come after you (he did lie on his mortgage app about his marital status afterall).....same thing with any credit card debts or auto loans.......by not consumating your divorce, you're dealing with a potential financial time bomb here!
And as leverage for getting him to sign divorce docs, you can simply let him know that you're aware of your 50% interest in the home he just purchased!
best of luck to you!
Great question and posts. The following is not legal advice:
In the state of California one spouse can buy property without the consent of the other, however if both are on title, both need to sign off on the sale of a property.
Property brought into the marriage by one spouse after the marriage is usually considered community property.
My greater concern would be why you have not legally separated. Your credit is interwoven, potential IRS tax problems, and other issues that would, in most cases, probably make it advisable for you to talk with an attorney about a divorce.
For example, for your to qualify for the $8,000 federal income tax credit you cannot have owned property for the past three years. It sounds to me as though you might be an owner.
The bigger question is: will you qualify for a mortgage? Because both of your credit is joint, the fact that he bought a house could affect your ability to qualify for a mortgage.
I think my colleagues have done a great job answering your question and, of course, as all have noted, there is no substitute for an opinion from a qualified family attorney or real estate attorney. As for the questions about obligation to inform you of his purchase, yes, he certainly should have done that, and, in most cases, the title company would have requested that the other spouse quit claim or acknowledge sole ownership of the property so there is consent and knowledge from the other spouse that ownership of the home belongs only to one married partner. While he certainly could have misrepresented his situation, stating that he was not married, for example, what may also have happened is that the title company did not require your signature. Since our laws in the US are based on old English "Common Laws," a married woman needs the consent of her husband to purchase property without having the husband on title, BUT, when the roles are reversed, in many cases, a man does not need the consent of the wife when he wants to purchase property without the wife on title. It's not equitable, but it is consistent with the historic application of laws even in California. So, there may not be a cloud on title with respect to his home.
However, for the most accurate information, for your options and your best course of action, please consult a family law attorney. You and your husband--if the situation is amicable, can even agree to share an attorney to finalize your separation and divorce (if it comes to that) to save legal fees and to quickly resolve the issues that can occur when property title and ownership are involved.
Area Pro Realty
All of these answers that my fellow she-agents have provided spell out the best course of action: talk to an attorney, a tax adviser and even a lender, regarding the first time buyer's tax credit.
As a real estate professor, my mind was drawn to your comment on community property. If your name is not on the loan, then no, you would not be held responsible in any way for his debt of the property. On the flip side, that means you are legally entitled to half the house. Not sure what he was thinking or who advised him, but if I were you, I'd talk to an attorney ASAP and sort this all out.
Elizabeth explained about the cloud on his title if he filed as an unmarried man. If he's filed as a married man, the escrow company would have asked for your signature to allow him to buy this as his sole and separate property.
He could possibly qualify under the $6500 tax credit if you and he currently have owned a home and he now bought this separately. But assuming, as you said, you're worried about the first time homebuyer credit, as a married person, then both of you qualify for the TOTAL of $8,000. One of you can claim it, but this adds a question as to whether you were willing to allow him to take it all. That's why this really needs an attorney and a tax consultant.
I'd talk to both. If you need some contacts let me know.