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What's Mine Is Yours: When Pre-Marital Real Estate Becomes Marital Property

martial home.jpgWith the growing trends towards lengthy engagements and living together before marriage, more and more couples are assuming "marriage-like" relationships before officially tying the knot. While this may work well at the time, if the parties do marry and subsequently divorce, the debate over when "my property" became "our property" can be tricky, particularly when it comes to the marital home. If a husband or wife bought a property prior to the marriage, that individual may think he or she is indisputably entitled to 100% of that property. However, in New Jersey, that is not necessarily the case, even if the party bought the house before the marriage or purchased it solely with his or her own money.

In Weiss v. Weiss, 226 N.J. Super. 281 (App. Div. 1988), during the engagement period, the couple discussed purchasing a home together. A contract of sale was entered and the closing of the home occurred 4 months before their marriage. However, only the husband made the down payment on the home, executed the mortgage note, and signed his name on the title. Years later, when the couple decided to divorce, there was a dispute over who had a right to the home. The Appellate Division found that a piece of property bought prior to a marriage can be divided as marital property if the parties had adequately expressed an intention to commence their marriage prior to the marriage ceremony. Because the home had been acquired during the specific consideration of their marriage, the Court ruled that the home was to be divided as a marital asset.

In Berrie v. Berrie, 252 N.J. Super. 635 (App. Div. 1991), the Appellate Division further fleshed out the Weiss case. The Court found that any property acquired prior to a marriage could be subject to equitable distribution if the parties established a premarital partnership by: 1) adequately expressing their "intention" to create a premarital partnership, and 2) acquiring assets in specific consideration of their marriage. The "intention" aspect of the test is not simply an intent to marry, but an intention to create a "marital partnership", similar to a business partnership, prior to the marriage ceremony, with respect to a particular piece of property.

In Winer v. Winer, 241 N.J. Super. 510 (App. Div. 1990), the husband purchased a condominium in Atlanta prior to the couple's marriage with inheritance monies he had received. The husband testified that he purchased the home knowing the couple would be comfortable there after their marriage, and the wife stated the property was purchased to be the marital home. The title was solely in the husband's name, but the wife moved in a month prior to the marriage, spending expended time and money decorating the home. Applying Weiss, the Appellate Division affirmed that even though the property was purchased with the husband's assets and put in the husband's name, the home was purchased in specific consideration of the marriage and could therefore be divided in the divorce.

The marital home is often the largest asset in dispute in a divorce, and determining whether it is a marital asset or not can have huge impact on the division of all assets. If you have an issue involving the division of real estate during a divorce, please contact one of our experienced New Jersey and Pennsylvania Divorce and Family Law attorneys.

THE FOREGOING IS INTENDED TO BE A GENERAL DISCUSSION OF THE LAW AND IS NOT INTENDED TO BE CONSTRUED AS LEGAL ADVICE. IF YOU HAVE A SPECIFIC QUESTION, PLEASE CONTACT OUR OFFICE TO SPEAK WITH AN ATTORNEY.

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