Family Matters

We Bought the House Before the Wedding. Now What Happens to It in the Divorce? Non-Martial Property and Partition Actions.

A common yet sticky situation that can arise in Divorce cases involves property purchased before the marriage that is titled to both parties. Here’s the situation: A couple buys a property together, puts both names on the deed, and gets married a year or two later. Years down the road, the marriage ends, and both spouses assume the property simply gets divided in the divorce as part of the marital estate.

However, it’s not that simple. In Pennsylvania, the divorce court is only empowered to divide and distribute marital property (what you acquired during the marriage).

A property purchased before the wedding, even with both names on the deed, does not automatically become marital property after the wedding.

Married couples in Pennsylvania normally own their home under a special form of joint ownership reserved for spouses (tenancy by the entirety), but that only applies if you bought or re-deeded the property after the wedding. If the deed was signed before you married and you never updated it, a Husband and Wife are ordinary co-owners of that premarital property.

What this means in a divorce context is that the value of the premarital property has two layers.

1. Layer one is the equity on the date of marriage, or the premarital value.  The divorce court does not divide that layer.  It belongs to the parties as co-owners, the same as if two friends or business partners had bought the property together.
2. Layer two is the equity that built up during the marriage, or the marital value.   

Since the divorce court doesn’t control the premarital layer, the legal tool for dividing it is a separate kind of case called a partition action. Partition is what any two co-owners of real property can use when they can’t agree on how to divide a property.  In a partition action, the court first confirms who owns what share of the property. Then, because you can’t saw a house in half, the court typically orders the property sold and the money divided, or allows one owner to buy the other one out.

The court can also do an accounting along the way. If one of you paid more than your share of the mortgage, taxes, or repairs, or one of you lived there alone while the other paid the bills, those numbers can adjust the final split of the premarital layer.

If you have a jointly titled premarital asset with your spouse and are considering Divorce, it is crucial that you speak with one of Obermayer’s experienced divorce attorneys to understand your rights, obligations, and strategic considerations.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.