While the name on the title may play a role in determining what happens to the home, the source of the funds and timing of the purchase are two important factors that will help drive a divorce court's decision in this scenario.
Generally, courts may consider the name(s) on the title when deciding how a house should be divided, but in many cases, the title alone doesn't always reflect the true ownership. If the spouse who was left off the title claims an interest, a judge will usually look beyond the document and will want to know:
When it comes to property division in divorce, states fall into two groups; "community property" states and "equitable distribution" states. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin follow community property laws. In Alaska, you can opt-in to a community property system.
In community property states, there's a presumption that spouses each own one-half of all the assets—including homes—they acquired during the marriage. In these states, marital property is normally divided on a 50-50 basis at the time of divorce. So one spouse could buy the other out of a home, by paying 50 percent of the equity in the home. Or the spouses could sell the home and divide sales profits evenly—the amount left after they pay off the mortgage and any other related debts and fees.
In equitable distribution states, there's no presumption that marital property should be divided 50-50 upon divorce. Instead, judges will divide property in a way that's fair or equitable under the circumstances. A judge could find that each spouse should have a 50-50 share of the equity in the home, or could find that a 60-40 split is fair, for example, to account for the amount of work one spouse put into home improvements.
The exception to both of these rules is that separate property is not divided between the spouses during divorce. Any asset that either spouse owned prior to the marriage—or that either spouse acquired through a gift or inheritance—remains that spouse's separate property.
In the context of this specific question, if your husband owned the house before the marriage, and that's why the home is in his name alone, a court would likely grant your husband the house as his separate property.
If you and your husband acquired the home during the marriage (other than by gift or inheritance) and used marital funds to buy it, the home could be considered marital property and divided in a divorce, despite the title and depending on your state's laws.
However, as with many legal concepts, there are exceptions to these general rules. Let's say the house is your husband's separate property, and he never put you on the title, but you contributed to the monthly mortgage payments or used your own money to pay for property taxes or home improvements. These types of financial contributions could give you an ownership interest. If you divorce, you could receive a share of the sales profits or ask that your spouse buy you out by paying you an amount equal to your portion of the equity.
In order to avoid these potentially complicated outcomes, it would be easy for your husband to put the house in both of your names. You can prepare a deed which transfers ownership from him alone to both of you. If you have questions about how to do this, speak to a local attorney for advice.
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