When Is A Property Considered A Marital Home?

Divorce Attorney Angela FoyQuestion:

I own a home with my mother through a Joint Tenancy with Right of Survivorship that was purchased well before I was married. Now that my wife and I are getting divorced, is she entitled to part of this property?

Is it considered a marital home because we’ve lived in it even though through the Joint Tenancy with Right of Survivorship it is titled to me and my mother?


Exactly who the house belongs to and how it will be allocated in the property division depends on many details, and the laws in Virginia, if that is where the divorce is taking place and where the home is located.  I do not practice in Virginia, so I can only speak in generalities based on my experience.

The first analysis is whether the house is marital property. Because you acquired it prior to the marriage and you have never shared the title with your wife, it is very likely that the court will determine that it is separate, non-marital property.

However, your wife may still try to assert a claim that part of the house should be marital, and this would likely depending on how it was paid for during the marriage. The strength of any claim would depend on how the house’s expenses, such as the mortgage, the property taxes, utilities, repairs or improvements were paid for. The court will also consider if you and your wife had any agreement about the property, such as that it would always stay separate property.

At the time of a divorce, the court presumes that the all marital property will be split equally.  However, the court may deviate from this presumption for many reasons. A common reason to deviate from that equal division presumption is consideration of the property brought into the marriage by each party.

The best way for you to approach your property division depends on many factors including your specific circumstances and the specific rules in your jurisdiction. I do not practice in Virginia, so I cannot inform you as to the state’s specific laws. You should discuss your case with a domestic litigation attorney in your jurisdiction.


Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. 

 Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.

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