The PreMarital House: A Major & Longstanding Issue Not Yet Decided

Pennsylvania has had equitable distribution of property in divorce for almost half a century. In 1990 it was in the vanguard of adopting laws to address domestic violence. But, despite thousands of appellate cases, some issues remain unresolved. One of those which still causes problems is the protection from abuse law and a residence that is not marital property.

The issue comes up a fair amount, especially in a day when couples are deferring marriage until their late 20s or 30s. By then, one spouse commonly owns a house titled in his/her own name. The new spouse moves in and sometimes that produces a change in title and sometimes it doesn’t. The law is plain. Take your premarital home and put your spouse’s name on it and “voila” it is marital property subject to distribution in divorce. Williams v. Williams, 540 A.2d 563 (Pa.S. 1988)

But many folks don’t make the title joint. The new spouse just moves in. Under Pennsylvania’s law (unlike most states), the increase in value of the property is subject to distribution but the equity the owner spouse had at the date of marriage is not.

The problem arises if there is an award of exclusive possession to the non-titled spouse. This often occurs when there is an alleged act of domestic violent and the non-titled spouse filed for Protection from Abuse. 23 Pa.C.S. 6101 et seq. The procedure is an expedited one where relief can be granted without a hearing and the hearing itself can come as quickly as 10 days from the date of filing. Both the preparation and often the hearing get short shrift. In the pleading the non-titled spouse often asks for exclusive possession of the residence and title to the real estate is often overlooked.

The statute involved actually has some clarity. It says at 23 Pa.C.S. 6108(a)(2) that a Court may:

Grant possession to the plaintiff of the residence or household to the exclusion of the defendant by evicting the defendant or restoring possession to the plaintiff if the residence or household is jointly owned or leased by the parties, is owned or leased by the entireties or is owned or leased solely by the plaintiff.

In abuse and special relief divorce petitions courts commonly miss the matter of who has title to the property or who is a party to a residential lease when deciding these cases. That is often because the parties don’t know to bring this issue to the attention of their attorneys. This means that a party can find him/herself evicted from a non-marital residence for up to three years. 23 Pa.C.S. 6108(e). If the defendant owner/lessor hasn’t raised the issue at trial, it is likely that the issue is waived in any post hearing appeals. It becomes even messier because that defendant is probably soley liable for the mortgage or rent on a property he/she is now excluded from occupying. Ouch!

The topic also comes up in the context of interim distributions of property during marriage. Using the same facts, let’s assume that the protection from abuse case fails and the non titled spouse circles back with a divorce proceeding and a request for interim distribution of the house titled in the other spouse’s name.  Again, the statute provides some clarity but not enough. It says at 23 Pa.C.S. 3502:

(f)  Partial distribution.–The court, upon the request of either party, may at any stage of the proceedings enter an order providing for an interim partial distribution or assignment of marital property.

The tricky term here is “marital property”. Section 3501(a) of the Divorce Code swings both ways on the topic of premarital or gifted/inherited property saying that the increase in value from date of marriage is “marital” but the property itself is not. So, let’s assume our couple married in in 2002 but moved into husband’s premarital pad which was then worth $400,000 subject to a $200,000 mortgage. During the next 25 years the house increased in value by $200,000 and the mortgage was paid down by $100,000 all while title remained steadily in husband’s name. There is a $200,000 premarital aspect and a $300,000 increase in value during the marriage. Is that “increase” enough such that the non-titled spouse can request “interim” distribution of the house? If the request was made a decade earlier when the “marital” component would have been far less, do we get a different result?

This may seem like a transient issue except that litigated divorces commonly consume 2-3 years and exclusion from your premarital house while paying a premarital mortgage is a source of enormous frustration. It also complicates support proceedings especially when one party is paying support premised upon prompt payment of the mortgage (an assumption that is part of support guidelines) and the recipient spouse decides to pay that mortgage late or…..not at all.