Can I refinance in only my name and keep it as separate property?

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Can I refinance in only my name and keep it as separate property?

I live in an equitable distribution state. I purchased a home prior to the marriage and I am in a position where refinancing may be necessary. Will this cause the home to become marital property and subject to full 50/50 distribution or will the distribution still be similar (such as half of the appreciation value during the marriage). If the overall debt increases on the loan during the refinancing, will this put me in a better position during a potential divorce as the overall principal will have increased?

Asked on April 25, 2012 under Family Law, Delaware

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Whether or not the home that you purchased before marriage is in your name or not really will not have any bearing as being separate property or not if there is not post or pre-nuptial agreement between you and your spouse that the home is your separate property and if a portion of the marital income is being used to service the home's current debt load.

The reason is that even though the home is in your name, under the laws of most states if marital income is used to pay down the home's debt, the other spouse has some semblance of a marital interest in the property in the event of a divorce.

The only way to make sure that the home remains solely as your separate property is to have your spouse sign a post nuptial agreement stating that the home is and will remain your separate property. My experience with such an issue post marriage is that such a request ordinarily does not go over too well with the other spouse.


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