There are so many anxiety-provoking things about the divorce process, it’s hard to speak to them all at once. Scratch that; I actually think it is literally impossible to speak to all the things at once.
Fears about what will happen to the marital assets are rampant among divorcing women. It probably doesn’t help, either, that many men confidently tell their soon-to-be ex wives that they are entitled to nothing in the divorce. Maybe they just don’t know. (To be honest, a lot of people know very little to absolutely nothing at all about divorce law in teir state.) Maybe they just want to convince you to settle for less than you’re worth; to keep you in the dark about it for as long as possible, but maybe even forever.
I can’t speak to his motivations, or the extent of his knowledge, but I can tell you that, from the moment you and your soon-to-be ex husband start on the path towards separation and divorce, you are no longer two members of the same team. You can no longer take what he says to the bank, so to speak. You should get your information elsewhere.
Now, you’re also only human. If he tells you something and it makes you feel scared or desperate, you can’t help that. But you can help what you do about it from that point forward. Do you say, “Oh, well, I guess that’s the truth,” or do you take the time to figure out what the truth really is? That part is on you. But for my part, I hope you’ll do the research because I believe there is a strong likelihood that he is completely and totally wrong. (In all likelihood, he lives in fear that you’ll realize what you’re worth!)
Anyway, for clarity’s sake, here’s a question I got recently:
My husband and I bought a house six months before we got married. It – both the mortgage and the deed – are in his name. Do I have any interest in it?
Let me start by saying that you likely have an interest – because nobody can read when they’re panicking and just want an answer – but let’s break it down a little bit.
In Virginia, we categorize property as either separate, marital, or hybrid. Marital property is anything earned, purchased or acquired during the marriage regardless of title. Separate property is separate, and not divisible in divorce; hybrid property is combination marital and separate property (and is partially divided, partially separated in divorce).
When it comes to dividing property, we are first going to look at the asset and see when it was purchased. In this case, the home was purchased six months before the marriage. This tells me a few things. Firstly, that there is a period of six months when your husband owned the house on his own before you married. Basically, whatever he put in prior to the marriage is his separately, including a down payment.
But what if you paid the down payment? After all, you were together, you just hadn’t yet walked down the aisle. You wanted it to be “our” home, and not just his. You maybe sole a place of your own and you rolled those proceeds into the new house that would be your marital home. Well, we can likely trace that back to you separately, too. We can see where that down payment came from, and we can attribute that back to you, usually. Money, after all, leaves traces, you know? It was in an account, it was transferred at closing, etc. We could even see the closing documents from the sale of your other piece of real property, if that’s an issue. We can trace yours, just like we can trace his, and we can attribute the appropriate separate property back to the party who contributed it.
Now, once you married, it became a marital asset. So, from that point, any mortgage payments you made, you made together (unless he was using, say, a trust fund or other separate account to make those payments). If it’s marital money – money EARNED during the marriage – then those are marital payments, even if it’s money directly from “his” paycheck.
There are still sources of money – inheritances, gifts, trust funds, personal injury settlements, etc – that are truly “separate” (and so not divisible in divorce), but for the most part the money that you’re earning is marital and is going to be divided in a divorce, including the money that you’ve earned and put towards the home.
Also, any improvements you have funded – again, as long as those improvements don’t come from a separate interest – will increase the value of the home and drive up equity, which will be divisible between the both of you.
So, long story short, just because you weren’t married when the home was purchased, or because it isn’t your name on the deed and/or mortgage, does not mean that you don’t have an interest in the home. A period of just six months is unlikely to make a big difference, anyway, because in the beginning of a new loan you end up paying the most in interest of any point in the life of a loan. Also, remember that not all of the “mortgage” payment each month is paying down the principal – you’re also covering property taxes, homeowners insurance, and more.
If your name isn’t on the mortgage and/or deed and you want to buy the house from him in the divorce, you will almost certainly have to refinance to do so, but, then again, that’s almost always the case anyway.
An experienced divorce attorney can help you figure out how to navigate these steps. For more information or to request a copy of our divorce book for women, visit our website at hoflaw.com.
