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
The Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
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.