22 May Will my ex get my house in our divorce?
Q. I owned my house a long time before I got married, and this property is currently still in my name only. I got married five years ago, but I’m in the process of getting a divorce. Will my spouse be entitled to half of my property after the divorce?
— Getting divorced
A. Every divorce is a little different. We hope you’re working with a competent attorney who can assess the specifics of your situation.
We can offer you some guidance.
Specifically, as part of a divorce, a judge is asked to decide what assets are subject to equitable distribution, said Kenneth White, a certified matrimonial attorney with Shane and White in Edison. If an an asset is subject to equitable distribution, the judge will also determine how much of that asset each party is entitled to receive.
Generally, assets owned by one party to a marriage prior to the marriage are immune from equitable distribution unless the assets were “commingled,” White said
“Had you placed your husband’s name on the deed, the asset may have been `commingled,’” he said. “But since you indicate that the deed has always been in your name alone, you did not ‘commingle’ it, and therefore you preserved its immune status.”
Accordingly, White said, the fact that you owned your home for a long time prior to your marriage bodes well for you retaining much, if not all, of the equity existing in the house. The longer you owned the home prior the marriage, the stronger your case will be to retain all the equity.
When analyzing the issue of equitable distribution of a house that served as the marital residence, the process is a little more complicated, White said.
For example, he said, if the home was purchased in contemplation of your marriage to your current husband regardless of what name(s) appear on the deed, a judge can find that it is a joint asset subject to equitable distribution. Accordingly, your husband would have a claim to share in up to 50 percent of the existing equity.
Other factors that could alter the analysis are if on the date you got married, there was an outstanding mortgage balance; whether the property had been refinanced during the marriage; or if any significant home improvements were made during the marriage, he said.
“The reason these questions are asked is because while the primary value of the home is immune from equitable distribution, your soon-to-be-ex may have a claim to share in any increase in value to the subject real property that is the result of your joint marital efforts,” White said. ”So if money was spent improving the home that caused the value of the home to go up, he may have a claim to share in a portion of that increased value.”
Similarly, if debt existing against the home was paid down, he may have a claim to share in the increased value as a result of the debt against the home having been reduced, White said.
Please note that he will not have a right to share in the equity that existed in the home as of the date of the wedding, nor does he have any right to share in any increase in value due simply to market conditions, absent the home having been purchased in contemplation of marriage to him as explained above, he said.
So this means there’s a good chance the majority of the equity existing in the home, if not all of it, will remain yours depending on the specific facts of your case. Be sure to work with an experienced family law attorney who can review with you all the relevant facts.
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