The characterization and division of property is a highly contentious topic in a divorce. Divorcing couples often must address the issue of who will get to stay in the marital home, and how the other party will be compensated for his or her share of the marital equity.
In Missouri ,when one spouse owns property prior to the marriage, that property is that spouse’s non-marital property and will remain separate at the divorce. However, significant issues arise when non-marital property is retitled in both spouses’ names during the marriage.
Under the theory of what is called transmutation, there is a presumption that non-marital property has been converted into marital property when it is jointly titled during the marriage. The original owner spouse can attempt to rebut that presumption, but it is a heavy burden of proof to show that a gift to the marriage was not what was intended.
It should further be noted that if the home remains titled only in the name of the spouse who acquired it prior to marriage, the other spouse may still have a claim to a portion of the equity if the parties have made payments on a mortgage loan during the marriage. In these cases, the Missouri courts often apply a complicated equation called the source of funds formula to determine what portion of the home equity is marital and what portion is non-marital.
If you would like more information about the potential characterization and division of your home equity in a divorce, please contact our firm to schedule a consultation with a family law attorney who has experience handling such matters.
The choice of a lawyer is an important decision and should not be based solely upon advertisements.