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The equity in the marital home is often one of the largest assets owned by the parties when there is a division of assets and debts. How this is treated can be complicated.

If the property was purchased during the marriage and with marital funds or marital assets, the value of the property less the balance presently due on the mortgage note will be deemed a marital asset. This will be true even if only one person is on the deed and that person is the only person liable on the mortgage note. The asset was purchased with marital funds and the monthly mortgage payments were made with marital funds, the resulting equity will be marital.

If the property was owned by only one spouse before the marriage, the value of the property on the date of marriage and the balance due on the mortgage note on that date must be determined. Then the present value of the property and the present balance due on the mortgage note is determined. The marital portion will include the amount the balance on the mortgage note has been reduced since the date of marriage because the reduction in principal is the result of the application of marital funds.

The use of non-marital funds to purchase the property will give rise to a claim for special equity, allowing the contributor of non-marital funds to be given the benefit of his or her initial investment plus the a percentage of any increase in value equal to the percentage the initial contribution bore to the purchase price.

If there are minor children the parent with majority time sharing may be awarded the possession of the house until remarriage or emancipation of the children. In this case the house would be sold at a later date and any order should specify how the expenses should be shared and the equity divided at the time of sale, depending upon whether the court treats the expenses of maintain the property as a form of child support or not.

These issues can be both complicated and confusing. If you need my help, go to my web site at www.peppler or call my office for a consult.

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