Division of property if divorced


#1

These questions are hypothetical. My husband bought our current home before he met me. He put a large amount of $40,000 cash down on the house. He bought the house in 2001. We married in 2006. My name is not currently on the mortgage loan or deed. Am I entitled to any of the house? What if we refinanced and put my name on the mortgage and the deed?


#2

Either way you would have a marital interest in the home. If the home was re-fi’ed, then the party who is vacating the house would necessarily want their name removed from the loan. The party remaining would need to re-fi (again) to put the loan into their sole name and the the vacating spouse would then sign the deed back to the party who remains in the house.


#3

So if we stay married, and I refinance with my husband, will I be entitled to half of the whole house. Meaning the amount he orginally put down on it when he bought it before meeting me? The house is over halfway paid for.


#4

Assets you had before you married are your separate property, unless the property was real estate and you titled it in both names. Any assets acquired during the marriage are marital property unless they were a gift to one spouse or an inheritance. It’s hard to answer property questions using hypotheticals, but I’ll try. Remember that in matters of property law, any specific issue that you have should be addressed with your attorney, as he or she will have more information about your personal situation.

What’s important is the source of the money used to purchase the property and whether there is a presumed “gift to the marriage” or not. First, separate funds are those earned before the marriage, after the date of separation, gifts from someone other than your husband, or inherited. If you can prove that money is separate, it usually remains separate.

Now, the catch is that no matter where money is from, if you take money and place it in real estate, like your house, and it is jointly titled, the court will “presume” that you “gifted” the funds to the marriage by putting them in a house that is jointly titled. This is a hard presumption to overcome.
Therefore, if you jointly title the house it is considered a gift to the marriage. However, the fact that he purchased it with his separate property may be a justification for an unequal distribution.

However, if you have reduced the principal on the mortgage during the marriage, then the reduction in the principal on the mortgage would be marital property. You would also be entitled to any increase in value that was caused because of your active efforts, such as installing new floors, upgrades etc. Increases in value that occur simply because of market forces are not marital property.