If we divorce, then does that mean that he gets the home even though I am the legal guardian of our 5 and 3 yr old?

Aug 8, 2012 by

Question: 

My husband and I own our home and it is in both of our names but he wants to go to the court house and take my name off of it. If we divorce, then does that mean that he gets the home even though I am the legal guardian of our 5 and 3 yr old?

State: 
West Virginia

Answer: 

First off, overall, the court will assess both you and your husband’s situation and decide who should keep the house.  The court does this under their power to equitably distribute marital property.  (For a definition of what constitutes marital property, see West Virginia Code Chapter 48, Article 1, #233.)

When dividing property, the court will assess many different factors as listed in West Virginia Code Chapter 48, Article 7, Part 1.  The court will also evaluate the situation to see who should have custody of the children, with the best interest of the children being the main determining factor.  So, if you are awarded custody of the children, that may be a factor on your side when the court distributes the marital property and determines who will be awarded the house.

Next, you stated that you and your husband both own the house and “it” is in both your names, yet he is thinking of taking your name off of “it.”  (I am assuming that when you say “it,” you are referring to the title.)  If you contributed to purchasing the home ““ via down payment, mortgage payments, etc. ““ and you are listed on the title as a co-owner, then you have a real property interest in the house, and your husband cannot unilaterally erase your interest just because he feels compelled to do so.  There would have to be some valid written agreement between you and your husband, where you gave up your ownership interest to him.

However, if the house was bought by your husband alone before marriage, or was received as an inheritance or gift during marriage, and he added your name on the title as a gift to you, then there is a possibility that the court may see the house as your husband’s separate property, and therefore not marital property.  Being separate property, the court would then not be able to consider the home when equitably distributing the marital property during divorce. 

In this situation, the house could indeed go to your husband.  Again, this is a possibility if your husband purchased the house with his money before you were married or received it as an inheritance, which doesn’t seem to be the case as you described it.  If you contributed to purchasing the home while married, then it would be marital property subject to equitable distribution described in the above paragraphs.  The court would apply the factors in Chapter 48, Article 7, to see who would be awarded the house.

Wendy Jaffe and Divorce.com can only provide general information about divorce. DO NOT RELY ON MS. JAFFE’S ADVICE ALONE. Before acting on information provided by Ms. Jaffe or by Divorce.com, talk to an attorney first about your particular facts and the law of your state. By submitting your question to Divorce.com, you are not creating an attorney/client relationship with Ms. Jaffe or with any of the other attorneys listed on this site.

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