Who Gets the Marital Home After a Divorce?

If you are getting a divorce 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.

The general rule is, anything that was owned before marriage by either party is separate property and not subject to distribution in a divorce. However, there are some situations where part of the value of the home may belong to the non-owning spouse.

When You Might Have a Claim

Issues arise when the property value of 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 or both parties working or managing their own or their spouses separate property and improving it. This increase may be subject to marital distribution. 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 proceeds if the home was sold.

The tricky part here is to decide how much of the home’s value increase was the result of the improvements and how much of it was inflation and the market. A real estate professional or appraiser can help determine this. After determining the value of the improvements to the home, you have to decide how much each person contributed, financially, to the improvements.

Getting 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.