My wife and I are separating. I provided the downpayment, and paid the mortgage on our home. Will I be allowed to keep it if we divorce?

We have not started divorce proceedings. There are no documents in her name. The deed and the mortgage is in my name. There are no documents that have her name on it that are attached to the home, outside of utility bills. 

There is some equity in the home, conservatively around $40,000. Can she lay claim to any part of the home?

Mr. Crossroads

‘The Big Move’ is a MarketWatch column looking at the ins and outs of real estate, from navigating the search for a new home to applying for a mortgage.

Do you have a question about buying or selling a home? Do you want to know where your next move should be? Email Aarthi Swaminathan at [email protected].

Dear Mr. Crossroads,

You are almost certainly out of luck if you had bought the home after you got married. In Pennsylvania, assets acquired during the marriage are regarded as community property and, as Pennsylvania is an equitable distribution state, they are divided equitably, if not always equally.

If you bought the property before you married and your wife did not contribute to significant upgrades and/or mortgage payments, it should remain separate property. Some couples also create a prenuptial agreement, which spells out what happens to property, such as your home, in the event of a legal separation or divorce. 

A prenup is a written contract between a couple’s marriage or civil union that clearly sets out the ownership of assets. This typically includes all assets — from cars and real estate to investment accounts and retirement funds. The prenup also usually overrides state laws about property distribution. 

But if you do not have a prenup, “the court will generally view the marital home as a jointly held asset regardless of whether one or both parties is named on the deed,” Jeffrey S. Stephens, an attorney who has handled multiple divorce and family law cases in New York and Connecticut, told MarketWatch.

Divorce law varies by state, particularly as it pertains to family homes, and separate vs. marital property. “In Pennsylvania, any property that was excluded by a prenuptial agreement will not be included in the equitable distribution,” according to the law offices of  Petrelli Previtera. “If a spouse chooses to use non-marital funds for a common purchase, like buying a home, that money will often be considered marital property.”

“Any property brought into the marriage and kept separate during the marriage is also considered non-marital property,” the law firm adds. “Gifts received by just one spouse during the marriage may also be kept separate. Inheritances received before or during the marriage that are kept separate may also be excluded.”

But there is a catch, even if you purchased this house before you married your wife, and there was no commingling of the asset. “If the value of any of the non-marital property increases during the marriage, the increase in value may be considered marital property,” the law firm says. So if your house increased by $100,000 in value during your marriage, that may end up being divided between yourself and your former wife.

Consult an attorney before you proceed, and make sure you have all of your paperwork.

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