Do I automatically get to keep a house I bought in New Hampshire if I brought it into the marriage?

Do I automatically get to keep a house I bought in New Hampshire if I brought it into the marriage?

August 31, 2021 12:39 pm Published by Leave your thoughts

Purchased The House Before Marriage in NH?

If one spouse owns the family home while the other does not, the law grants rights to the spouse who does not own the family home. These homestead rights include the right to remain in the family home until an order from a judge forces you to leave.  A temporary order specifies who, while a divorce is pending, is permitted to live in the family home, and who can enter certain areas of the family home. 

What happens to the family home during a divorce if it is only owned by one spouse?

Under New Hampshire law, regardless of how the home is titled, it is subject to division by the Judge. Even if a house is owned by one spouse only, that does not necessarily mean that spouse automatically keeps the house in the case of a divorce. This is true even if the house was acquired prior to the marriage. The starting presumption is that all assets, including homes, are divided equally regardless of how they are titled.  However, there are a number of reasons why a Judge can decide to do something differently than an equal division. One factor is whether an asset was brought into the marriage. If so, the Judge may allow the spouse that brought the asset into the marriage to keep that asset outright, or to keep a greater than equal portion of that asset.

What if the house has appreciated during the marriage?

Home equity tends to appreciate in value. This appreciation can come from three sources. First is general market appreciation. Second are improvements made to the house. And third, as a mortgage is paid down, home equity increases. For all of these reasons, it is very common for a house that is brought into the marriage to have significantly greater equity at the time of the divorce than it did at the time of the marriage. When one spouse brings a home into the marriage, many judges will attempt to calculate how much of the home equity increased during the marriage by taking the approximate home equity at the time of the marriage and deducting that from the approximate current home equity. The judge may then divide equally only the amount of the increase in equity that occurred during the marriage. The amount of the equity that was brought into the marriage will be awarded entirely to the spouse that brought it in. There is no requirement that a Judge take this approach but, as long as there is an even-handed process to how the calculations are made, and the best available evidence is used, this type of approach is well within the Judge’s discretion.

How is a marital home divided?

It might be challenging to divide the marital house. Selling the home and splitting the money is the most straightforward approach to prevent trouble. If either spouse opposes it, only a court has the authority to order it.

The problem might get more complex when small children are involved. One of the above-mentioned equitable distribution considerations is the necessity for the child’s custodial parent to remain at home. This is usually due to a wish to avoid uprooting the children.

There are several options for allowing the custodial parent to stay in the house while allowing the other spouse to partake in the home’s worth. One option is for the spouse who wishes to live in the house to purchase the stake of the other spouse. Then, to balance the scales, one spouse keeps the house while the other keeps more of the remaining assets. But, of course, this implies that there are sufficient assets to make the exchange feasible. Another option is to have the custodial parent refinance the house (assuming that the spouse qualifies for a mortgage) and compensate the other spouse with the refinance proceeds.

Another frequent alternative is for the couple to maintain the house in both names while one of them stays there and then sells it and split the money later. The youngest child’s entry into or completion of college is frequently used as the termination date. It is often the spouse’s duty who lives in the house to cover the costs of living there. This method must be handled carefully to avoid ongoing disputes about how the costs, and the ultimate home equity, will be divided.

The court will choose if the couple is unable to reach an agreement. In doing so, the court will keep in mind its responsibility to act in the children’s best interests.

If you purchased the house before marriage and have questions about division of assets or need a divorce attorney in New Hampshire? Get in touch with our team. We bring extensive experience helping individuals navigate the ins and outs of divorce.

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This post was written by Cohen and Winters

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