Establishing a first home together is one of the greatest moments in a marriage, but when a couple’s marriage journey sadly ends in divorce court, what happens to their home is often one of the most contentious aspects of a divorce. For many spouses, the marital home is their most valuable asset. In community property states like California, the court considers all assets and property acquired during the marriage as community property subject to 50/50 distribution during divorce. But what if one or both spouses purchased the home before the marriage occurred?
What Happens if Both Spouses Bought the Home Together Before the Marriage?
Some engaged couples go house shopping during their engagement and purchase a home together before the marriage. Others buy a home together and cohabitate before they’re married and then become legally married later. Either way, if both spouses purchased the home together before marriage, share their names on the deed, and one or both paid the mortgage during the marriage, the home is a marital asset and subject to 50/50 division. During settlement negotiations, the spouses may agree to sell the home and split the proceeds or one spouse can buy out the other spouse’s portion. In some cases, spouses decide that one spouse can keep the home in exchange for assets of equal value.
What if One Spouse Alone Bought the Home Before Marriage?
While most states define separate assets as those purchased by one spouse before the marriage, in most cases, one spouse buying a home and then living there together with the other spouse during the marriage commingles the home, making it a marital asset. The following reasons explain how a home purchased by one spouse before marriage becomes marital property:
- Even if only one spouse owns the home and pays the mortgage alone, if the other spouse lives there and contributes money and time—or just time alone—toward the home’s maintenance, upkeep, cleaning, decorating, and homemaking, the home becomes a commingled marital asset and the other spouse is entitled to a portion of the home’s value
- If one spouse bought the home but the other spouse helped make mortgage payments or payments were made from a joint account, the house becomes a commingled marital asset and both spouses have a claim on the value of the home
- If one spouse keeps the home and cares for the children of the marriage so the other spouse is free to focus on advancing their career and paying the mortgage, the home is a commingled marital asset and the spouse whose name isn’t on the deed still has a valid claim to a portion of the home’s value
In almost all instances, if both spouses live in the home together for a substantial amount of time, it becomes a community or marital asset subject to division during divorce.
What if One Parent Wishes to Retain the Home to Raise the Children?
In some cases, a parent with primary custody or a substantial portion of parenting time in the custody schedule might wish to keep the family home in order to minimize disruption in the children’s lives. In this case, a deferred home sale is sometimes the solution. Both spouses continue to co-own the home until an agreed-upon date, such as when the children come of age or reach an age when they’re better prepared to make a move. This option is only viable if the financial situation of the spouse who retains the home supports it. In negotiating a divorce agreement, they could also choose to defer the home sale while raising the children with the agreement that the spouse who remains in the home buys out the other spouse’s portion at a later date.
If you have questions about a home purchased before marriage and what options you have during your divorce, an experienced divorce attorney can help.
