Purchasing a Home in Contemplation of Marriage | Family Law ...

Today, people are marrying later and later in life.? In 1950, the average age of a groom was 23 years old while the average age of the blushing bride was 20.? Today, on average, a man marries for the first time at the age of 28 and a woman marries for the first time at the age of 26.? Often at this stage in their respective lives, each party has obtained a higher education degree, started his or her career, put a small nest egg in the bank, and purchased a home. Alternatively, parties are entering into their second or third marriages having each accumulated substantial wealth and property.

Many people would probably assume that a home purchased prior to the marriage in the sole name of one of the parties is non-marital property that will not be divisible should the parties separate.? Not so, the First District Appellate Court recently held in In re Marriage of Weisman, 2011 Ill App (1st) 101856-U.

In IRMO Weisman, the parties, Larry and Lauren, became engaged in January 1997.? Lauren began looking for a house in which they and their respective children from previous marriages could live.? Within 10 days of the parties? engagement, Lauren found a home she liked.? She worked with the architect to redesign almost every room to accommodate their family.? Larry invested $1.272 million of his nonmarital funds into the property, closed on it, and titled it in his name only. In March or April of 1997, Lauren and her children moved into the home Larry was living in while the marital residence was being constructed.? The parties were married in June 1997.? In October 1997, Lauren and her children moved into the marital residence and Larry moved in full-time sometime in 1998.? In 2006, Larry filed a Petition for Dissolution of Marriage.? The trial court found that the marital residence was Larry?s nonmarital property and Lauren appealed.

The appellate court reversed.? The court reiterated the well-accepted rule that property acquired before marriage is generally not considered marital property unless it was acquired ?in contemplation of marriage.?? In determining whether property was acquired in contemplation of marriage, a court examines the totality of circumstances to discover the parties? intent, including the source of funds used to acquire the property, the identity of the person who signed the contract, the amount of time between the purchase and the marriage, and the name in which the title was held.

In applying these factors to IRMO Weisman, the court found that the house was purchased with the idea that it would be the marital residence, both parties had been looking for houses and had viewed the marital residence together, Lauren made changes to the design of the house to accommodate the parties? children, the parties were engaged when they began looking for a house, the house was purchased only three months prior to the marriage, Larry was paying Lauren?s rent at the time of the purchase,?? and Lauren moved into Larry?s home while the marital residence was being constructed.? Therefore, the appellate court found that the marital residence was marital property and divisible between the parties upon their dissolution.

So, how can you avoid having what you believe to be your non-marital residence divided between you and your ex-spouse?? If you are not yet married, you and your significant other should enter into a prenuptial agreement specifying who gets what property should the marriage dissolve.? If you are already married, you and your spouse can enter into a postnuptial agreement dividing the property.

If you do not wish to enter into any formal agreement, although not guaranteed to bring you success, these tips should help tip the balance in your favor.? Purchase the home prior to your engagement or any discussions about an engagement.? You should be the sole signatory to the contract to purchase the home.? Purchase the home with your non-marital funds and, if possible, continue to pay the mortgage with your non-marital funds after the marriage.? Title the home in your name only.? Do not imply to your significant other that you will jointly own the home.

Often times, the largest single investment any person will make is his or her house ? protect your investment!

Shannon Burke began her career at Schiller DuCanto & Fleck LLP in 2010 as an associate in the firm?s Appeals and Research Department. Prior to joining the firm, Ms. Burke served as a law clerk to Michigan Supreme Court Chief Justice Marilyn Kelly and Illinois Appellate Court Justice P. Scott Neville. She was also a research attorney for the Michigan Court of Appeals and the Illinois Appellate Court.

Source: http://familylawtopics.com/2013/07/purchasing-a-home-in-contemplation-of-marriage/

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