Depending on when you purchased your home, the answer to this question is either quite simple, or somewhat complicated. Let’s get the easy answer out of the way first: if you purchased a home during your marriage, it is overwhelmingly likely that you and your spouse are both entitled to 50% of the equity in that home – regardless of who is on the deed. As is always the case with the law, the facts of your case may cause an exception to this general rule to apply. But don’t get your hopes up – in the vast majority of divorces, the equity in a home bought during the marriage will be divided evenly between the spouses.
If you purchased your home prior to your marriage, and your spouse is not on the deed at the time of your divorce, the analysis is a more complicated one. The jumping off point is an understanding of the classification of property in a divorce as either separate or marital. To oversimplify – separate property is property which was owned prior to a marriage, and marital property is, naturally, property which was acquired during a marriage. In a divorce, a judge will award separate property to the party to whom it belongs and will equitably divide marital property.
It may seem, then, like your home is absolutely separate property. However, it is possible for a judge to reason that what was formerly separate property should, because of the conduct of the parties during the marriage, be treated as marital property through the application of the equitable doctrine of transmutation. A judge would look to four primary factors when deciding whether transmutation has occurred: 1) whether the home was used as a marital residence 2) the ongoing maintenance of the property by both parties 3) whether the title has been placed in joint ownership and 4) whether the credit of the non-owner spouse has been used to improve the property. Obviously, in our example, factor #3 would favor you, but it is important to understand that this is not the only factor a judge will consider. Additionally, these four factors are not exhaustive, and facts may exist in your case that would persuade a judge one way or another.
Finally, even if a judge determines your separately deeded home is your separate property, you are not entirely out of the woods. If your spouse can demonstrate that he or she has substantially contributed to the preservation and appreciation of your home during the marriage, your spouse will still be entitled to an equitable share of the increase in value which occurred as a result of
It is exceedingly common for me to consult with clients who mistakenly believe that their spouse is not entitled to any equity in their marital home simply because their spouse is not listed on the deed. If nothing else, what you should take away from this article is that the answer to this question is oftentimes complicated, and your best course of action is to consult with an attorney who can advise you of how the law applies to the particular facts of your case.
