Property


#1

In NC, there is a presumption that property acquired during the marriage is marital property.

The question of whether property is marital or separate is not determined by how property is titled, but instead is determined by the source of funds used to acquire the property.

David L. McGuire
Attorney
The Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
NCdivorce.com
(919)787-6668

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#2

Mr McGuire,

In reply to your response you stated that “property is determined marital or seperate by the source of the money used to acquire the property”

What exactly do you mean by the word “source?”

For instance I have been married for two years and work two full-time jobs. I have excellent credit and have saved a decent amount of money. I purchased my own house before I got married.

My wife, on the other hand, has horrible credit, not a dime to her name, and was 20,000 in debt before we got married, and is still 18000 in debt today.

We have seperate checking, savings and retirement accounts. I pay the mortgage on the house and 1/2 the utilities out of my accounts from my pay. She pays the other 1/2 of the utilities out of her accounts from her pay. I am able to budget and save some of my pay, but she blows her money every month on a bunch of junk.

With that being said if I were to purchase a bigger house using only my credit, and the monies in my account would she still be entitled to half of it should we get divorced?


#3

sk wilson,

Yours is an excellent question. 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.

If you buy a house while you are married and before you are separated, for the house to be classified as “separate” property, you must be able to show that you purchased it with funds that are separate AND that you did NOT intend for the property you purchased to be a gift to the marriage. That’s what the “source of funds” rule is all about – “was the money used for the purchase of the house separate money?” For example, if you had a savings account with $100,000 in it before you got married, and then bought a house with that separate money while you were married, and you expressed in the conveyance (or in some other way) that you did not intend to make a gift to the marriage, then the house you bought would be considered separate property, and your wife would be entitled to none of it if you divorced. However, if you did not express that you intended the house to be your separate property when you bought it, or if you took title to the property with your wife (for example, tenancy by the entireties), then it could be classified as marital by a judge, and yes, your wife may be entitled to a portion of any equity that you may have in the home.

With regard to your questions regarding credit scores used to obtain a mortgage or debts of the parties, those things are irrelevant in determining the character of property. 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.

David L. McGuire
Attorney
The Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
NCdivorce.com
(919)787-6668

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#4

“source” for a house - you have just confused me about what is and what is not. For example, shortly after marriage, I withdrew funds from a mutual fund to pay the down payment (in reality, I had a small loan to start the downpayment to allow normal distribution of capital gains in the mutual fund), but that was paid off by the mutual fund distribution within 2 months. The mutual fund existed prior to the marriage, but the closing on the house occurred after the marriage. I was told the spouse’s name had to be on the deed then, and during a recent refinacing, was told the same thing again. If that is true, how can one show the house was not meant be a gift of the marriage? My military pension account(all but 2 weeks of militray service earned before marriage)is paying the monthly payments.


#5

Dear roadrunner1961:

Greetings. Let me try to simplify this for you (although you won’t like my answer). First, separate funds are those earned before the marriage, after the date of separation, gifts from someone other than your wife, or inherited. If you can prove that money is separate, it usuallyremains 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. Best of luck.

Janet L. Fritts
Attorney at Law
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
NCDivorce.com
919-787-6668

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#6

If someone is getting a divorce and property was purchased after the marriage is the wife intitled to half of the property even if her name isn’t on it? the husband abandoned the wife after only 3 months together.