Who Gets the Marital Home After a Divorce?

Who gets a marital home after a divorce depends on when the house was purchased. As a general rule, anything owned by either of the spouses before marriage is separate property and not subject to distribution in a divorce. If the home was purchased during the marriage, consult with a divorce lawyer to decide who gets the marital home after a divorce. Enter your ZIP code below to speak with a family law attorney today.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 6, 2021

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If you are getting divorced and you moved into your spouse’s house after you were married, then the house would not normally be part of the property distribution because it was separate property, since it was acquired before the marriage took place. You won’t be allowed to keep the house in most cases, nor will you necessarily get a portion of the proceeds of the sale of the house if it is sold because it was never community property.

The general rule for premarital property is, anything that was owned before marriage by either party, such as homes or other assets, is separate property and not subject to community property division in a marital settlement agreement during divorce. However, there are some situations where part of the value of the home may belong to the non-owning spouse.

We know divorce law can be tricky, especially in circumstances like this. Keep reading as we dig deeper into this scenario, and as we also reveal your options under marital property laws.

When do you have a community property claim?

So, if the separate property includes homes, how could you have a claim? Issues arise when the property value of the separate property increases over the course of the marriage. In this situation, it is important to determine the reason or reasons that the property value increased.

If improvements were made to the home during the marriage, this may increase the value. This would be classified as an active increase. A passive increase, on the other hand, is one that is caused by market forces or inflation.

An active increase is made by one person or both parties working or managing their own or their spouse’s separate property and improving it. This increase may be subject to marital assets distribution even though they owned the house before marriage.

In cases of active increase, the spouse that owns the home would have to buy the non-owner out in order to keep the house, or the non-owner would get a portion of the money if the owner decides to go ahead and sell the home.

The tricky part here is to decide how much of the home’s value increase was the result of the improvements to the real property and how much of it was a factor of inflation and the market. A real estate professional or appraiser can help with the process of determining this. After determining the value of the improvements to the home that were made as a couple, you then have to decide how much each partner contributed financially to the improvements to the piece of property prior to the separation.

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How can you get legal help?

Divorce law can be complex, especially when real estate is involved. If you are going through a divorce, you should strongly consider speaking with an attorney for assistance and advice.

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