Buying a House Before Marriage: What That Means for Divorce

According to data from the U.S. Census Bureau, the average divorce happens after eight years of marriage. Eight years is a long time - it often means there’s enough time to have kids, invest in shared furniture, and potentially, own a house. 

It’s no surprise that figuring out to do with a family home can be one of the more contentious parts of getting a divorce - because a house is often the most expensive thing people will buy in their lifetime. 

Here’s a few common concerns people have, and what you need to know. 

Is my spouse entitled to half of my house if it’s in my name?

If the home is marital property (bought during the marriage), it likely doesn’t matter whose name it’s in - regardless of whether your name is on the deed or on the mortgage, you’re both entitled to part of it.

If you’re specifically wondering whether your spouse gets half of the property, though, only community property states are concerned with giving a 50/50 split in divorce. Community property states are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Most other states abide by common law standard, which considers multiple factors to come to a decision of what is a “fair” (but not necessarily 50/50) split.

What happens if I owned a home before we were married?

(Or: What happens if my partner bought our house before we were married?)

Around 19 million single people own property today - which means that many people enter marriage already owning a home. So what happens when one spouse buys a house before marriage, and then divorce happens?

In most cases, property that was owned prior to the marriage is considered individual property - not shared. 

It’s complicated, though, and despite owning your home before getting married, you may find that a portion of the asset is now your spouse’s. Why?

Consider that when you buy a home, unless you buy in cash, what you’re really doing is committing to mortgage payments. So if the non-owner spouse contributes to mortgage payments each month, there’s a valid reason for the house itself to be considered both of yours.

In other words, if you didn’t own your home 100% before the marriage - and you’re still paying it off during the marriage - your spouse may be entitled to a percentage of it. 

And this can be true even if your spouse didn’t contribute directly to the mortgage.

It might seem unfair that someone is entitled to part of your house when they didn’t contribute much to it financially. However, the courts generally believe that being married makes paying for a house easier to do. 

If your spouse is paying for groceries every week, for example, that might make it easier for you to pay your mortgage down faster - because you didn’t have to pay for groceries, something you’d normally need to do. So it does make sense for the court to assume that both people contributed to the mortgage, even if if they didn’t directly contribute.

That is the backbone of why “marital property” does not rely on who bought what, so long as it was purchased within the marriage.

So how much money will the non-owner spouse receive?

In this situation, the non-owner spouse is not entitled to half the property - in all likelihood, they will be entitled to half the principal paid down during the marriage, in addition to some of the equity (appreciation) that the property accrued during the marriage. 

State by state, court decisions on how exactly the additional value is split up will differ. Common Law courts will give extra weight to “active appreciation” (if the non-owner spouse takes steps to help increase the property’s value, like painting it or updating the flooring). They may also consider the health and earning capacity of each party, etc.

A community property state will try to divide everything 50/50.

What are my rights if I leave the marital home?

Sometimes as a marriage breaks down, one spouse may feel it’s necessary to move out of the marital home. This is especially true once the divorce process begins. 

You may have heard that being the spouse that leaves the home is a “big mistake,” but as always, it depends on the state and the situation. This is one example of why it’s a good idea to contact a divorce attorney (and maybe a Realtor, so that you’re ready to go) before you make any decisions or moves. 

However, in most cases it is a financially prudent decision to continue sharing the house. Otherwise, you might end up paying off two homes at once - if you’re still legally obligated to contribute to your home’s mortgage, but also have to continue paying for your new place.

It’s also a good idea to stay in the family home if children are involved. If you move out of the home but continue having to help pay for it - thus reducing the size of the next home you can move into - it might be harder to show the court that you’re able to provide adequate accommodations for your children, which can greatly reduce how often you see them. And it’s harder to qualify for a new mortgage if you’re still financially on the hook for your old one.

Your spouse (or ex-spouse) can’t make you leave the home without an occupation order (for reasons of physical violence, etc) - so don’t feel like you “have to” leave if it’s not in your best interest to do so. 

If I agree to a buyout, does the agreement need to account for Realtor fees?

If you and your spouse are planning for one of you to buy the other out, one thing you’ll want to account for is Realtor fees - and this will be part of the negotiation process. There is no law dictating what you need to pay, especially since you’ll be guesstimating on the home’s future worth. 

In a traditional real estate transaction, the agent commission fees can account for up to 6% of the home’s sale price (3% to the buyer’s agent and 3% to the listing agent). That can really eat into your funds if you’re the spouse that keeps the home - so you’ll want to consider that when you structure your deal.  

One silver lining: once it’s time to sell, you can work with Houwzer to sell your home and save up to 50% on commission fees. Unlike a traditional agent, Houwzer’s listing fee is only 1% - despite being a full-service offering. They’ve simply brought the commission fee back in line with what it actually costs to sell a home. And with 2-3% recommended for the buyer’s agent, it’s no surprise that the average client saves $16,000.

So: what percentage of the house will you get if you divorce?

When someone comes into a marriage already owning a house, the house won’t be split 50/50 between both spouses - in most cases, one will be entitled only to some of the appreciation and principal paid during the marriage. The longer the marriage lasted, the more they’re going to be entitled to. And if you bought a home together, you can expect the courts to split the value of the home roughly between you - regardless of who technically paid off the mortgage.

Keep in mind that what you feel your spouse should be entitled to, and what they are legally entitled to, are often two different things.

If you have a sense that your divorce will be acrimonious, don’t wait to hire a lawyer. The time to hire a lawyer is before a massive fight begins - not after you accidentally make all the wrong moves that can legally be counted against you.

Not all divorces are contentious, though. If both you and your spouse are looking to part ways quickly and efficiently, while spending the minimum amount of time and money doing so, hellodivorce.com offers tech-enabled divorce services for as little as $100.