Q: I was given a house by my father after date of separation but before divorce papers were filed is it separate property?
Would my house gifted to me by my father after date of separation but before divorce paperwork was filed be separate property or marital property?
A: It depends on the facts, but there is the potential of a marital interest in the real estate, even if the spouse is not on the title. Even if only one spouse is on the title of the deed, the spouse may not have the ability to pass a clear title if there is a marital interest in the property. Timing probably matters in a case like this. If the husband is the only person on the title, transfers title to the son, and then files a divorce 10 years later, then there may not be an issue as the wife had 10 years to make an issue out of it. On the other hand, if the husband transfers title to the son, and files for divorce a couple of months later, then you can likely expect problems in potentially both the divorce case itself and also potentially with a title dispute. A quit claim deed is often used in these circumstances if the wife is in agreement with the title being transferred and the parties want to make it clear that the wife is surrendering any marital interest she may have in the home. You would need to consult an attorney to determine what applies in your situation.
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