Ask A Lawyer: Does She Have Any Right To The Equity Of The House?



My wife and I have kept everything financial separated throughout our 2-year marriage. Now, facing divorce, I am wondering how things will be divided. We have no joint accounts of any kind, checking, savings, credit cards, cell phone plan, etc. I have savings (checking, savings, 401K, IRA, stocks, house). She has zero savings and is in debt (acquired prior to marriage). Her credit card debt is close to $2000, and she has a loan against her 401K. She has no other assets except her car and jewelry.

The house is in my name, and I was living in it prior to our marriage. I have 20% equity in house. My wife has never made any payments towards house. Does she have any right to the equity in the house?

I’d also like to know if she has any right to half of my 401K. We were married in 2008, and the value of my 401K is now less than what is was when we married. Does she have rights to half of the gains made in 2009, but none of the losses in 2008? And does the same apply for IRA’s?



You advise that you reside in Texas and, assuming the divorce proceedings will be in Texas, the Texas laws on property and debt division will apply, which they are categorized as a “community property” state.   The property and debt acquired during the marriage, including contributions during the marriage to the equity in the house and retirement accounts, will be reviewed for division under those laws.  Assuming you did not have a pre-marital agreement, the separation of the finances, in and of itself, will not dictate the division.  Generally, it is the property and debt that exists at the time of the divorce that are divided, although there are exceptions to the general rule, such that that 401K and IRA values at the time of divorce should be the applicable figures for determination as to the portion that is marital.  The specific allocation of property and debt, and possible claims of your wife, will require a thorough review of the history of the property and debts in relation to the marriage by an experienced domestic litigation attorney, such as the Cordell & Cordell offices in Dallas and Fort Worth.      



Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.

Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues. 

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