Franklin, TN asked in Divorce for Tennessee

Q: I brought $75k of equity to purchase our first house together to my husband’s $0

Since then we have purchased another house using all the equity from the first. Am I entitled to recoup the $75k when we settle the house during the divorce?

Related Topics:
2 Lawyer Answers
Anthony M. Avery
PREMIUM
Anthony M. Avery pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
Answered
  • Knoxville, TN
  • Licensed in Tennessee

A: First you needs either grounds or an agreement to get divorced. In a contested case you need to be able to prove that you brought separate property into the marriage. The appreciation in value of marital property will be subject to a equitable distribution by the Court. The husband may claim you dissipated marital or his separate property. His contributions to the marriage will be considered also. Hire a competent attorney to start preparing for a tough divorce action.

Ross Matuszak
Ross Matuszak
Answered

A: Thank you for your question. First, you have to decide whether the divorce will be an agreed divorce or a contested divorce. It is possible that your husband will agree that since you came into the marriage with the $75,000, it is yours and should be awarded to you in the marital dissolution agreement. Remember, the marital dissolution agreement is a contract, and parties are able to negotiate. If negotiation fails and it is contested divorce, the question becomes whether the $75,000 is considered separate or joint marital property.

Separate property is property that you own apart from the marriage. Separate property is awarded to the spouse who owns said property in the divorce. Joint marital property is property that you and your spouse own together as part of the marriage. Joint marital property is equitably divided by the court in the divorce.

Since you came into the marriage with the $75,000 used to purchase the first house, it likely started as separate property. However, since you invested the money in a house that was considered the marital residence, then purchased another house (again the marital residence) with the proceeds, it is likely that your $75,000 was transmuted from separate to joint marital property (this is especially true if either property was titled in both spouses' names).

There is also a principle called commingling. Commingling is when separate property becomes entangled with joint marital property, as in a bank account or a real estate purchase. Based on the facts of your case, a court may decide that your initial investment was commingled with your marital finances through two purchases of real estate. The court will look at the other contributions to the marriage as well, both financial and non-financial. Then, the court will equitably divide the marital estate.

As was previously stated, these are factors the court will consider as well as several others in a contested divorce. It is usually best to try to agree on terms through an agreed divorce if possible. In a complex case such as yours, it is important to hire an experienced attorney to discuss all of the factors (not just this one) so you can make an informed decision on which route to take.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.