This is a very common scenario with a complicated answer. An asset owned prior to the marriage that remains separate – in separate names and not commingled – will likely remain the separate property of that spouse and will not be subject to equitable distribution. However, were marital funds (monies earned during the marriage) used to pay the upkeep or expenses on the asset? Was the asset or dividend from the asset claimed on a joint tax return? Answering ‘yes’ to either of those questions may cause a portion of the home to be subject to equitable distribution. This is very fact-sensitive and depends on many factors, such as the length of the marriage and how long one party owned the asset before and after the marriage. While it may not result in an equal division of the asset, it may be equitable.
If one adds their spouse’s name to the deed on a home that was owned prior to the marriage, the adding of the spouse’s name to the deed transmutes the asset and it is considered a gift. In other words, if John Doe owns a home, marries Jane, and five years thereafter adds Jane’s name to the deed, the law says that John intended to gift the house to Jane and the house will be subject to equitable distribution.
If you intend to keep the asset exempt from equitable distribution, it is imperative that you speak with an attorney to ensure you protect your asset and your rights.
Diana N. Fredericks, a family law attorney at Gebhardt & Kiefer, P.C. Diana works with clients whose needs lie in all areas of matrimonial and family law.