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Equitable Distribution and the Separate Marital Residence

Generally speaking a marital residence that is the separate property of one party to the marriage is not subject to equitable distribution without a showing that it has been transformed or transmuted into marital property. A spouses contribution toward the other spouses separate property marital residence alone does not mean that the marital residence has been transformed into marital property subject to distribution at the time of a divorce. Rather it must be shown that an increase in value has occurred for the property from the date of the marriage until the commencement of the action for divorce.

If an increase in value has been shown to have occurred and that increase is attributable to contributions or efforts of the other spouse then that appreciation is subject to equitable distribution. Each case is fact specific and an attorney should always be consulted to determine what is and what is not separate property during a divorce, and whether or not property has been transformed or transmuted into marital property during the marriage. Sometimes this is not as easy to prove to a court as one may believe and expert witnesses must be utilized who may need to prepare reports.