I Bought a House, Then Got Married. Me and My Partner Then Divorced. Can She Take the House? This Is in NY.

I am not licensed to practice law in the state of New York, but I will answer your question according to the law of the jurisdiction where I do practice law (Utah) because that may give you an idea of how the issue is treated in Utah. You will need to consult with a knowledgeable New York family law attorney to know the correct answer to your question as it applies under New York law.

The decision in the Utah case of Lindsey v. Lindsey (392 P.3d 968, 833 Utah Adv. Rep. 16, 2017 UT App 38) is a perfect explanation of the circumstances under which a spouse’s separate property can be awarded to the other spouse in a divorce case, so I will cite excerpts from that decision below (I did not include the footnotes from the decision):


¶31 When distributing “marital property in a divorce proceeding, the overriding consideration is that the ultimate division be equitable-that property be fairly divided between the parties.” Granger v. Granger, 2016 UT App 117, ¶ 15, 374 P.3d 1043 (brackets, citation, and internal quotation marks omitted). To that end, a trial court must first “identify the property in dispute and determine whether it is marital or separate.” Dahl v. Dahl, 2015 UT 79, ¶ 121 (brackets, citation, and internal quotation marks omitted). Marital property ordinarily includes “all property acquired during marriage,” “whenever obtained and from whatever source derived.” Dunn v. Dunn, 802 P.2d 1314, 1317-18 (Utah Ct. App. 1990) (citation and internal quotation marks omitted). Separate property ordinarily includes premarital property, gifts, and inheritances, including any appreciation that may accrue during the marriage. See Dahl, 2015 UT 79, ¶ 143; Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).

¶32 The presumption is that marital property will be divided equally while separate property will not be divided at all. See Dahl, 2015 UT 79, ¶ 121; Dunn, 802 P.2d at 1323. Married persons have a right to separately own and enjoy property, and that right does not dissipate upon divorce. See Mortensen, 760 P.2d at 308. Thus, equity generally requires that “each party retain the separate property he or she brought into the marriage, including any appreciation” thereof. Dunn, 802 P.2d at 1320, 1323; accord Dahl, 2015 UT 79, ¶ 143; Mortensen, 760 P.2d at 308.

¶33 But separate property “is not totally beyond a court’s reach.” Elman v. Elman, 2002 UT App 83, ¶ 19, 45 P.3d 176 (brackets, citation, and internal quotation marks omitted). Before carving property out of the marital estate, a trial court must consider whether circumstances warrant an equitable override of the separate-property retention rule. See Henshaw v. Henshaw, 2012 UT App 56, ¶ 15, 271 P.3d 837. Three circumstances have been identified under Utah law as supporting an award of separate property at the time of divorce. These exceptions are when separate property has been commingled [the Lindsey v. Lindsey case did not treat the commingling exception, so I will provide some information on that in a footnote to this answer[1]]; when the other spouse has augmented, maintained, or protected the separate property [the contribution exception]; and in extraordinary situations when equity so demands. See Mortensen, 760 P.2d at 308; Dunn, 802 P.2d at 1320. The latter two exceptions are at issue here.


¶35 Under the contribution exception, a spouse’s separate property may be subject to equitable distribution when “the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it.” Mortensen, 760 P.2d at 308. This exception may be satisfied when one spouse brings assets into the marriage and the other spouse’s prudent investment of those assets substantially increases their value, see Dubois v. Dubois, 504 P.2d 1380, 1381 (Utah 1973), or when marital funds are expended or marital debt is incurred for the benefit of one spouse’s separate property, see Schaumberg v. Schaumberg, 875 P.2d 598, 602-03 (Utah Ct. App. 1994). In addition, this court has contemplated that the exception might apply when one spouse works for a business owned by the other spouse but is not “paid a wage or salary,” see Rappleye v. Rappleye, 855 P.2d 260, 262-63 (Utah Ct. App. 1993), or when a spouse elects to forgo salary or related compensation that would have benefited the marriage so that those funds may be reinvested in his or her separate business, see Keyes v. Keyes, 2015 UT App 114, ¶ 30, 351 P.3d 90. Under such circumstances, one spouse’s effort or investment may render the other spouse’s underlying asset, its appreciated value, or some portion thereof subject to equitable distribution. See, e.g., Schaumberg, 875 P.2d at 602-03.

¶36 While spouses often contribute to one another’s financial success in a variety of ways, Utah law draws a line between contributions that qualify as “enhancement, maintenance or protection” of a spouse’s separate property and those that do not. See Jensen v. Jensen, 2009 UT App 1, ¶¶ 11, 16, 203 P.3d 1020 (citation and internal quotation marks omitted). Under Utah law, perhaps the most common type of spousal assistance-taking on some measure of household or family responsibilities to allow the other spouse to spend time enhancing the value of his or her separate property-has been rejected as a standalone basis for awarding separate property under the contribution theory. See id. ¶ 16.

¶37 As this court concluded in Jensen, one spouse’s efforts to “maintain[] the household,” provide childcare, and run a part-time business that “contributed to [the] family finances” were insufficient to justify awarding even “part” of the appreciated value of the other spouse’s interest in the corporation of which he was president. Id. ¶¶ 4, 10-11, 15-16 (internal quotation marks omitted). Although the wife’s efforts may have enabled her husband to devote his attention to his employment, she had not sufficiently contributed to the increase in value of the corporation’s equity: “Wife did not assist in running the business nor contribute in any way to its increase in equity. Moreover, it [was] unclear whether the increase in equity was due to anything other than inflation.” Id. ¶ 16. Likewise, in Kunzler v. Kunzler, the contribution exception was not triggered by one spouse’s assumption of household responsibilities, which allowed the other spouse “to focus his time and energy on preserving and increasing the value” of his separate property. 2008 UT App 263, ¶¶ 19 & n.5, 32, 37, 190 P.3d 497.

¶38 The division of labor among married parties may take any number of forms, and the give-and-take often inherent in marital relationships is generally not a sufficient basis for judicially rewriting title to property. The presumption that parties retain their separate property at divorce would be rendered largely irrelevant if rebutted by any spousal effort that freed the other spouse to work on his or her separate property. Thus, for purposes of this exception, direct involvement with or financial expenditures toward a spouse’s separate property appear to be key.


  1. The Extraordinary Circumstances Exception

¶46 Under Utah law, a spouse’s separate property may be awarded to the other spouse “in extraordinary situations where equity so demands.” Elman v. Elman, 2002 UT App 83, ¶ 19, 45 P.3d 176 (citation and internal quotation marks omitted). The bar for establishing an extraordinary situation is high, traditionally requiring that “invasion of a spouse’s separate property” is “the only way to achieve equity.” Kunzler v. Kunzler, 2008 UT App 263, ¶ 35, 190 P.3d 497. A quintessential extraordinary situation arises when a spouse owns separate property but lacks income to provide alimony; in that circumstance, “an equitable distribution of the [separate property] would be well within the trial court’s discretion.” See id. ¶ 37; see also Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct. App. 1990) (“The court may award an interest in the inherited property to the non-heir spouse in lieu of alimony.”). An extraordinary situation has also arisen under “very unique” circumstances in which, absent the exception, a husband would have shared in profits his wife created as to their marital property, but she would not have shared in profits he created-and which she enabled him to create-with respect to his separate property. Elman, 2002 UT App 83, ¶ 24 & n.5.

¶47 Depending on the facts of a specific case, a court might take into account the rate of return earned on separate property during the marriage when determining whether an extraordinary situation exists or in calculating the amount of any such award. See, e.g., id. ¶¶ 20, 26, 29-30 (affirming an award of “a small share of the appreciation on [the husband’s] partnership interests,” which was “only above a reasonable rate of appreciation”). But an award of separate property may also be independent of any rate of return earned on the property during the marriage. See Henshaw v. Henshaw, 2012 UT App 56, ¶ 20 n.7, 271 P.3d 837 (rejecting the argument that, because the spouse’s separate property declined in value during the marriage, the other spouse could not receive an equitable interest under the “extraordinary situations” exception (citation and internal quotation marks omitted)). If a court were to award separate property due to a spouse’s inability to pay alimony, for example, that award could well be made irrespective of the rate of return earned on the property during the marriage.

[1] On the commingling exception:

See Dahl v. Dahl, 459 P.3d 276 (Utah 2015), 2015 UT 79

¶143 “Generally, premarital property, gifts, and inheritances [are considered] separate property, and the spouse bringing such … property into the marriage may retain it” in the event of a divorce. Keiter v. Keiter, 2010 UT App. 169, ¶ 22, 235 P.3d 782 (internal alterations omitted) (internal quotation marks omitted). But premarital property may lose its separate character where the parties have inextricably commingled it with the marital estate, or where one spouse has contributed all or part of the property to the marital estate with the intent that it become joint property. Dunn, 802 P.2d at 1320. Courts look to a party’s actions as a manifestation of a spouse’s intent to contribute separate property to the marital estate. Kimball v. Kimball, 2009 UT App. 233, ¶ 28, 217 P.3d 733.

Utah Family Law, LC | | 801-466-9277

(15) Eric Johnson’s answer to I bought a house, then got married. Me and my partner then divorced. Can she take the house? This is in NY. – Quora

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