What Happens To My House I Owned Before I Got Married In My Divorce?
The journey through divorce- Non-Marital Property
When you purchased your home prior to your marriage, so long as you have not added your Spouse to the title (Deed), the house remains your separate property. The house will be set aside to you in the divorce.
BUT…
Your Spouse may have a marital interest in the house. Why? If you paid for the mortgage out of the marital income (including your wages), then these funds paid can be considered in the division of the assets and debts as a credit to your Spouse. Did you make any improvements in the property during the marriage? Did you have the insurance, property tax, or were any other funds put into the house? Again, all the marital money spent on the home can be considered in the divorce. The house however, stays with the Spouse who owned it if they want to keep it.
Is it the same for bank accounts?
Yes. If you did not add your Spouse’s name to the account, it stays your property. However, if you added to the balance of the account out of marital funds, then you may have co-mingled the asset. The Judge will look at all the facts about the account.
What about my retirement account?
If you worked at your job before you married? This is a situation where PART of the account is non-marital and the other portion is marital. It is time to talk to the fund manager and have them provide a statement as close to the date of marriage as possible. These funds stay separate — no exception.
One thing I hear all the time is that ALL the retirement money should be separate. This is 100% not true. Any funds earned during the marriage are marital and can be divided.
Non-Marital Property issues should be discussed with your attorney. Issues about non-marital assets are something which can be discussed in mediation or in settlement negotiations. There are times when the other Spouse has no desire to consider this property in the negotiations. If this is who you look at the situation, it is completely ok to take that asset off the table. However, if there is another asset that is difficult to divide or maybe it comes down to dividing debts, it would be ok to ask the Spouse with the non-marital property to take a little bit more of the debts in exchange for you diving up any interest you may have in that property. As an attorney, I just want me clients to understand how it works so they can make an informed decision with their best interest being considered. What you do with this information is up to you.
In the end, the goal of a divorce settlement is for the division to be as close to even as possible. Therefore, what is separate, non-marital, property should stay out of the conversation to the extent there is not a marital interest in the property. If there is a marital interest, it is all about documentation and proof to determine the dollar amount that should be considered in the division of the assets and debts. The owner of the non-marital property walks away with what they brought into the marriage so long as they did not intend to give change it to a marital asset which was to benefit everyone. Non-Marital can stay non-marital.
Since this is a LEGAL issue, you need to talk to an attorney if you have questions about what is marital and non-marital property in your marriage.
