By Divorce.com staff
Updated Aug 28, 2023
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When it comes to the property division during a divorce, one common concern is what happens to the house if it is solely in one spouse’s name.
Many people mistakenly believe that if the house is in their name, they get to keep it and not share it with their ex. However, things are not always that straightforward.
This article will examine the factors determining how a family home titled in your name gets handled during a divorce.
Let’s dig in.
How Do The Courts Divide Property?
How property is divided in court during a divorce will be determined by the laws of the state where you dissolve the marriage.
When judges consider the division of assets, they look at all property items that spouses have at the moment. They may include property acquired before and during the marriage and after separation. The next step is determining which items belong to marital and separate property.
Marital or joint property is everything the couple acquires during their marriage, including money, items, real estate, or debts. Separate property includes all a person possessed before the wedding or received through inheritance and gifts.
Courts examine whether the item has been kept separate or mixed with other marital assets to determine what qualifies individual property. If spouses use it together or improve its value during the marriage, it will likely be divided between them.
There are several ways to divide the house if it’s your marital property. You can buy out your spouse’s share, sell it and split the money, or continue to co-own it.
An alternative option is to sell the home and continue to rent it. This approach offers advantages like a streamlined selling process, cashing out while living in the same place, and avoiding property taxes, homeowners insurance, and maintenance fees.
Take a look at Sell2Rent.com, a specialized platform that handles rental property management utilizing this strategy.
Property Division in Community States vs. Equitable Distribution States
In the states with community property laws, all assets, including houses, cars, jewelry, etc., are divided in half between the spouses. It means that if you bought a house during your marriage, it qualifies as jointly owned, even if only your name is on the title or deed.
In such cases, your spouse may be entitled to a fair share of its value in the event of a divorce.
Let’s consider the situation where you owned a house in your name and acquired it during your marriage. In states with community property laws, assuming it was purchased with community funds, it will be typically divided on a 50-50 basis.
The court will divide a house between you and your spouse, following some common methods. For instance, you may buy out your spouse’s share by paying 50 percent of the home’s equity. Another approach is to sell the house and divide the proceeds equally after settling any outstanding mortgage.
If you plan to divorce in an equitable distribution state, the courts there don’t have an assumption of a 50-50 division. Instead, judges strive to divide property fairly (not always in half) based on specific circumstances.
For example, a judge may consider one spouse’s contribution to home improvements and choose a 60-40 or 70-30 split.
What Are My Wife’s Rights to the House Titled in My Name?
Whether the house is titled in the husband’s name or the wife’s name does not change the analysis. Merely having your name on the title or mortgage deed does not guarantee that the house will automatically belong solely to you after a divorce.
Although courts consider who is named on the title, they also look into what funds were used to buy and renovate it and how it was used. It may be considered jointly owned property if both spouses lived in it as a married couple.
At the same time, just because the courts consider your house as shared property does not guarantee that your wife will receive half of its value. Your spouse might have a claim to some of the money the home is worth. However, the exact share depends on the circumstances and the judge’s decision.
What Are My Husband’s Rights to the House Titled in My Name?
Whether it’s the husband or wife does not change the analysis. If you and your husband bought a house while you were married, it doesn’t matter if only your name is on the deed. In most cases, what matters is when the house was bought and what money was used for the down payment and mortgage.
Let’s say you put away some money from your monthly salary and then used it to pay for the house. Your name is on the deed and mortgage. Will your husband have a share in the house? The answer is yes because the money you earn during the marriage is marital property.
So, you will probably still share the house with your husband because you bought it during marriage and used marital funds.
If you purchased the house using the separate money that you had before the marriage, your husband might still get some share. It will likely happen if the house’s value increases while you are married or your husband helps improve the property.
Will I Keep The House If I Bought It Before Marriage?
Divorce property laws consider a house you bought before the marriage and solely owned as your personal property as not subject to division during a divorce. However, there are situations where this rule may not apply.
Your house increased in value during your marriage.
If your property becomes more valuable during the marriage, your husband or wife may be entitled to a share of that increased value. It can occur when your spouse helps increase the value of your separate property, such as the family house.
One example is if your partner used their money to make repairs or helped improve the house during your marriage.
It doesn’t mean the house will become joint property if it qualified as separate before the marriage. However, due to the potentially higher price, your spouse may claim a portion of the house’s increase in value.
The courts will also look at why the value increased. Some judges will only divide this increase if it happens because of the couple’s sole or joint efforts to improve the property. Other courts will also consider market changes since the house has been bought and divide such increases between the spouses.
Depending on the state laws, the increased value of a home could be split in half between you and your husband or wife, but not the house itself.
The courts might also consider various factors to determine a fair division, such as the following:
- The marriage length (longer marriages may result in a 50-50 division).
- The type and value of the separate property.
- Each spouse’s earning capacity and skills.
- Contributions to property acquisition and improvements.
- Various support obligations.
- Minor children’s needs and best interests.
These factors may vary depending on the jurisdiction and the case’s circumstances.
Joint ownership interest due to contributions.
If you acquired ownership of the house before you married and your name is the only one on the title, a judge would likely agree that it’s your separate property and belongs solely to you.
But if you and your husband or wife used your money to pay for the house jointly, it will be considered shared property, even if their name is not on the deed.
If you bought the house using your own separate money, e.g., from an inheritance, and your spouse never helped with any payments or renovations, they won’t likely have a share in it. However, the opposite situation is more frequent.
For instance, suppose your husband or wife helped with the monthly mortgage payments or used their own money for taxes or repairs and improvements. These financial contributions could give them part ownership of the house. Your spouse might also get some of the money if you sell the house in a divorce.
Depending on your home division method, your husband or wife might ask you to buy out their share by paying them a fair amount of money.
Keeping a house a separate property might be challenging, especially for long-term marriages. But it doesn’t mean your husband or wife will get half of it in a divorce. A general rule is that your house will be exempt from division if it qualifies as separate property, was purchased before marriage, and was maintained separately from the marital estate.
Another option to save it from your spouse’s claims is if you agree that it belongs to you in a prenup or postnup.