The premise of this blog post is a simple one. When you are getting divorced, you and your spouse are splitting assets, including assets that have only one party’s name on the title. That includes the house, cars, recreational vehicles, and other property items. If you are married, it does not really matter that the asset is in your name alone.
This is because all property is presumed to be marital unless one can make a valid non-marital claim to the property item. Non-marital claims include those tied to assets owned before the marriage, assets inherited from family members, or assets acquired after the parties stopped living together as spouses. If the property is titled in one spouse’s name, but that spouse does not have a valid non-marital claim to the asset, then the asset is considered marital, and must be included in the property division.
If the house is titled only in one spouse’s name, both spouses have an interest in the house, and one spouse will have to buy out the interest of the other spouse. It might even be that the titled spouse buys out the interest of the other, non-titled spouse, in which case the title will need to be placed into the name of the non-titled spouse after the divorce process is complete.
This principle applies to debts as well. If one spouse was left off of the mortgage because they had credit problems, that does not absolve that spouse of co-responsibility to repay the mortgage debt.
As for assets that are held jointly, but to which one spouse has a non-marital claim, this principle does apply conversely as well. If one party has a non-marital claim to an asset for which title is held jointly, the joint title (on its own) does not defeat the non-marital claim. There are many instances when one party will oppose a non-marital claim by asserting that the asset is held in joint names. How title is held is not the most important factor; the most important factor is whether the asset is a product of joint efforts (literally or figuratively) as opposed to being traced to before the marriage, to an inheritance, or facts that show an absence of marital funds or efforts.