The wife may or may not get the house in a divorce. It depends on various factors, such as:
- Is the house her separate marital property?
- Terms of the prenuptial agreement
- The rules of the state (community property distribution or equitable property distribution)
Is the House Her Separate Marital Property?
The wife’s house is considered separate marital property – and therefore not subject to division – under the following conditions:
- She owned the house before marriage and remained the sole owner even after marriage.
- She did not perform any act that converted her separate marital property into a “mixed property” anytime during the course of the marriage.
- She received the house as a gift or inheritance before or during the marriage.
- She acquired the house in her name during the marriage, but this property was not acquired for the benefit of the marriage. This circumstance does not happen very often, but one example would be a house purchased for a business that is not divisible in the divorce, or the home was purchased in the wife’s name for someone else who was the real buyer of the property. Typically, any purchase of an asset or the incurring of a liability for the “benefit of the marriage” is termed as the “product of the marriage” and is shareable by the spouses based on the laws of the state.
- The house is designated as separate marital property based on an enforceable contract – for example, a prenuptial agreement.
- She purchased the house by using funds from her separate property (for example, by selling a separate house and buying another house in her name, or using funds from an inheritance to purchase a house in her name). She needs to prove that she intended to keep the acquired house as separate property.
Terms of the Prenuptial Agreement
If the wife has a prenuptial agreement that states that she will get the house in case of a divorce, then it’s very likely that agreement will be honored and she will get the house. A valid prenuptial agreement takes precedence over the state’s marital property distribution laws.
The Laws of the State (Community Property Distribution vs. Equitable Property Distribution)
Community Property Distribution
In a state that follows the rule of community property distribution, a house is considered as community property if it is acquired by the couple during the marriage (usually from the start of the marriage until they physically separate without intending to continue the marriage). Also, a house that was a separate marital property before marriage but was converted to mixed property post marriage, usually done by using marital income to pay for the separate property, is regarded, at least in some percentage, as community property.
Courts in community property states distribute property 50/50 between the spouses when divorce happens. Either spouse cannot alienate community property without the other spouse’s permission. Each spouse can manage only their 50% share.
Therefore, if the house is not a married woman’s separate property, in a state that follows the rule of community property distribution, she will, in most cases, get a 50% share in the house.
Equitable Property Distribution
A state that follows the equitable property distribution rule distributes the house fairly and equitably (not necessarily on a 50/50 basis, but 50/50 is the general rule) between the spouses. The courts may consider the following:
- How much money has each spouse contributed towards buying the house?
- Is it fair to give the majority share in the house to the spouse who has invested a larger (or the entire) amount?
- Does the wife also own a house that is considered a “separate marital property?”
- What is each spouse’s economic condition and earning capacity?
- Should the spouse who gets the sole or joint physical child custody reside in the marital home?
- How much has each spouse contributed towards non-monetary things like homemaking, childcare, supporting the other spouse, etc.?
- Other factors, depending upon the circumstances of the case, are also considered.
All of these above factors notwithstanding, the very typical allocation from dividing a home in an equitable distribution state is 50/50. It is an extraordinary case in which a marital home is not divided 50/50.
To sum up, a wife will get full ownership of the house in a divorce if it is her separate marital property or if it is so specified in the prenuptial agreement.
In a community property distribution state, she can expect to get 50% of the house. She can get the entire house if the other spouse agrees that she can have it, for whatever reason, including the continued well-being of the children.
In an equitable property distribution state, she will very likely be awarded 50% of the house, although, in extraordinary situations, she may get more than 50% of the entire house if it is considered just and fair by the courts.
Check with your divorce attorney about the house distribution laws followed by your state for more clarity on the topic.