The appreciation in value of separate property can be claimed
It’s important to understand that the appreciation in value of any separate property is added to the marital pot of assets in a divorce proceeding.
For example, the spouse that isn’t on the title can make a claim that he or she made contributions or exerted effort in some way in order to lay claim to the appreciation in value of the separate property.
For example, the non-title spouse can claim that he or she spent lots of time with architects or contractors, or spent a lot of time cleaning the separate property, and thus claim the appreciation in value of the separate property.
Whether children are involved makes a difference
It’s often easier and more straightforward for a judge to decide the split on a marital home if there are no children involved. If however there are still young children living in the marital home, then one party may have to pay the other party to live in that house with the children for continuity purposes.
For example, let’s say one spouse is the primary custodial parent and this spouse can’t afford to maintain the home by him or herself, but wants to stay in the home so the kids can continue at the same school. Then the court might order both parties to co-own and maintain the marital home until the kids finish high school.
What is the earnings capacity of each spouse?
The court will look at each party’s earning capacity and history over the past few years. If one party doesn’t have much earnings capacity while the other party does, then the judge may order the earning spouse to pay a spousal support package which may include the housing expenses for the non-earning spouse (i.e. cost of a rental, buying another property for the non-earning spouse, etc.).
Remember that child support and spousal support can play off of each other, and that child support generally ends at age 21.
Pro Tip: It’s rare to see judges award lifetime spousal support these days. Courts are much less forgiving these days when it comes to earnings capacity.