There can be many issues in any given divorce case based upon the circumstances, some cases may have serious custody, parenting time or child support same may have alimony issues, some with debt, but almost all cases require some division of property including but not limited to the house, cars, bank accounts and retirement accounts. One specific item of property that must be divided, the marital home, often includes not only economic or financial concerns, but also emotional issues and attachments to the home or neighborhood, especially where there are kids.
How Does a Court Handle Division of Property in a Divorce?
The court must first determine whether the property is marital or separate. Marital property is typically anything that comes into the marriage regardless of who purchased it or who earned the income to purchase it. Most of the property in a typical divorce is considered marital and subject to an equitable division, that means roughly divided in half. Separate property falls into a few specific categories such as, property that one spouse owned before marriage that is kept separate and not contributed to during the marriage, inherited property that is kept separate and property that is given specifically to one spouse and kept separate. The biggest problem for most people trying to claim that a specific item of property is separate, is maintaining its separate nature and not contributing to it in any way during the marriage.
Is the Marital Home Considered the Separate Property of the Spouse that Owned it Before the Marriage?
Typically the answer will be no. First, the courts often give special treatment to the marital home, after all it was the home of the parties where they both lived and often had children grow up there. Second, in most cases, it is contributed to by the parties paying taxes on it, paying a mortgage or equity line of credit, maintaining it or improving it, all of these things would typically change it from its nature as separate property to marital property to be divided. However, in more short-term marriages, often the party that owned the property pre-marriage will be awarded one hundred percent of the equity that they had in the home at the time of the marriage. This requires a historical appraisal accurate to the date of the marriage for the home from a qualified appraiser and documentation showing the mortgage or equity line of credit balance as of the date of the marriage in order to determine the equity at the time of the marriage.
If you or your spouse is considering a divorce, it is imperative to meet with an attorney to discuss how the potential divorce may effect you financially and of course, if you have children what you may be looking at in terms of custody or parenting time. Please do not hesitate to contact us to schedule a consultation.