During a divorce, property isn’t always divided the way you expect. Who gets the house depends on when you bought it, how you paid for it, and the laws in your state, regardless of whose name it’s in. Some divorcing couples are surprised to learn that the name on the deed doesn’t always determine who gets the house in a divorce.
The most significant factor that will influence whether you get to keep your house (even if it’s solely in your name) during a divorce is your state’s divorce laws, specifically whether you’re in a “community property” or an “equitable distribution” state. But other factors will have an impact as well.
Community Property vs. Equitable Distribution
Most states use equitable distribution, which means the court divides marital assets in a way that’s fair, not necessarily 50/50. Both spouses’ finances, assets, and needs are taken into account when deciding how property should be divided.
States with a community property approach (like California, Texas, and Wisconsin) divide marital assets equally. This means all wealth and assets accrued during the marriage are split down the middle between both spouses.
Because of these differences, a spouse in an equitable distribution state may have more room to argue that it’s fair for them to keep a home titled in their name, especially if they made most of the financial contributions. But courts can still treat the property as a shared marital asset and award equity to both spouses. Community property states treat most assets acquired during the marriage as marital property, no matter whose name is on the deed. This makes it more difficult for you to keep the home outright.
Since equitable distribution states look at what’s fair rather than automatically splitting everything 50/50, factors like who’s on the title, who paid the mortgage, and whether the home was purchased before the marriage carry more weight.
Your Home May Be Marital Property. Even if It’s Only in Your Name.
Separate property is anything you acquire or earn before your marriage, including inheritances, retirement account contributions, and real estate. You can also assign other property as separate assets in a prenuptial agreement or postnuptial agreement.
Conversely, any assets acquired during the marriage are considered community property (also called marital property).
In general, your home is considered marital property in a divorce if you purchased it during the marriage and used marital assets to buy it. Both spouses’ names don’t necessarily need to be on the deed for this to be true.
But there are other considerations the court will look at. For example, if you completed renovations with community assets. Or if you made mortgage payments with community assets or money from a shared bank account. The court will also consider other non-financial contributions, such as homemaking or staying home with the children.
Essentially, anything showing that the house was used as a family home can make it marital property.
How Family Courts Handle Marital Property Division During a Divorce
If the court determines the home is marital property, how it will be divided depends on several factors, including:
- The state where you live
- When you bought the home
- The length of the marriage
- How the property was titled
But I’m the Only One on the Deed!
There are many reasons married couples purchasing a home may only put one spouse on the title. Most often, this is for credit reasons. If one spouse has significantly better credit than the other, they may qualify for better mortgage terms on their own. Or spouses may choose to put only one name on the deed, intending to add the other spouse later. But sometimes life gets in the way, and it never happens.
If you’re going through a divorce and never got around to adding your spouse to the deed, you might think that was the one time putting something off worked in your favor. But just because the house is in your name only doesn’t necessarily mean you get the house free and clear.
If you’re in a community property state and bought the home during your marriage, the law considers the home owned by both spouses — even if it’s only in your name.
For example: You live in a community property state, and your home is titled in your name only. But your spouse contributed to the down payment and also helped with mortgage payments periodically. You are now getting a divorce after 10 years of marriage. In a community property state, your home is likely considered community property, and your spouse has a claim to a share of the home’s equity.
If you’re in an equitable distribution state, your spouse could still have an investment in the home, especially if they helped with the monthly mortgage payments or down payment, or if they contributed to any renovations or remodeling projects.
It also matters if you have children. Family court judges consider the children’s best interests when deciding who gets to stay in the home or who owns it. If one parent has primary physical custody, the court may prefer to keep the kids in a familiar environment, even if the house isn’t in that parent’s name.
What If I Bought the Home Before I Got Married?
You have a better chance of keeping your home if you purchased the house before you got married and didn’t add your spouse to the title. But even then, ownership isn’t always straightforward. Courts don’t stop at the date of purchase when evaluating who has a stake in the home.
If your spouse did any of the following, they may have an interest in the property’s value (not an exhaustive list):
- Helped you pay the mortgage
- Covered other household expenses so you could afford the home payments
- Chipped in for property taxes
- Contributed to home improvements or renovation projects
Here, the court might decide your spouse is entitled to a share of the equity.
Can a Divorce Lawyer Help Me Keep My House?
Yes, and it’s often essential for a favorable outcome in your divorce decree.
Your spouse can contest the title ownership in divorce court. In these situations, the spouse who isn’t on the title may claim you had an agreement (even if not on paper) that you both owned the home—regardless of whose names are or aren’t on the title. Countering their argument can be difficult on your own, which is where a good family law attorney comes in handy.
Your attorney can review financial records and gather evidence to show how the home was treated during your marriage, who financial contributions came from, and how much. They can also explain your options, such as a buyout or a negotiated settlement.
Either way, working with a lawyer is your best chance at keeping your home. Better yet, hire an attorney before you’re tangled up in a divorce for a legally sound prenup or postnup.
