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Whether a spouse is able to keep a property after the divorce ends usually depends on the state and the rules of marital property which may rely on when the person purchased the house and if it remained outside of the marriage. These rules may then lead to the conclusion of the divorce procedure with the property still held and owned by the individual spouse.
What Is Marital Property?
When the two spouses become legally wed, most property acquired during the marriage is marital property. This is usually anything from joint bank accounts to cars to even houses. The two parties will generally place these in both names or in the other spouse’s name. Along with other items that both parties will use at some point, the divorce court will view these assets as jointly owned and are part of the marital property that may face a division after the couple is unable to resolve marital conflict. Once the judge divides assets, it is not usually possible to change the decision without additional information given and a substantial reason for a change in judgment.
What Is Separate Property?
When the courts are in agreement to what is marital and separate property, it is possible to determine who will get which items before dividing all other assets and liabilities. When one spouse keeps a house in his or her name without entering the item into the marriage, it may remain separate from the relationship and retain the same properties at the point of divorce. This lets the spouse keep the house without any complications for states that do not lump all assets together no matter who owns them. Then, with proof that the property is separate, the spouse will retain the house once the divorce is complete.
The Gray Area
There are times when separate and property that is apart from the marriage could mingle with marital property. Some houses could progress through property division in a divorce if the couple earns investment income if the value of the house increases to provide for the marriage or when the two parties benefit together from the asset. The inclusion of the house as marital property is in the gray area of these matters where the judge may need to consider the matter carefully. Other court authorities may ensure that the house is separate when no part of the real estate touched the marriage.
If the asset remains passive during the course of the marriage, it may still remain the property of the spouse rather than proceed through a division. However, if it is active in some manner or creates an interest, the other spouse may gain monetarily through the divorce. Generally, the gray area exists through the inclusion of the property such as when one or both lives in it during the legal relationship. If one party helps pay the mortgage or invests time or money into the asset, it may become marital property depending on the state and the judge.
Transmutation of Property Originally Separate
In the rare exceptions of one spouse using the property for the marriage that was originally separate, it is possible to convert or transmute the asset into marital property even if it was separate previously. This often happens when the spouse gifts the item to the marriage. If a wife kept a house outside of the relationship, she could provide income from renting the property to others and ensure that there is money in the marriage if either party loses a job or if the couple falls on hard financial times. This changes the house she had originally into marital property that will face the division of assets during a divorce.
Commingling Property in the Marriage
Immunity granted to separate property may enter the marriage and lose this separate status. This happens when money from the marriage mixes with separate funds or assets mingle together. Deposits, contributions and investments often progress through these activities and become marital property even if separate initially. This may happen by accident or occur naturally over time.
Legal Help with Separate Property in a divorce
It is important to consult with a divorce lawyer to fully understand if an asset is part of marital property based on the legal definition and backtracking the asset with financial matters. The lawyer may discover how the other spouse transmuted the house or commingled the funds.
Provided by HG.org