What if a house that my wife and I own is not included in the divorce?
When people are married and they purchase a house together, the house is automatically titled as tenants in the entirety, which means that each party owns the entire house and this is referred to as an undivided interest in the property. Both have the right to occupy it and use the property and they each have a right of survivorship, so if one of the parties dies then the property would automatically pass in its whole to the other party without the necessity of probate. In addition, creditors of one spouse cannot force a sale of the property to collect a debt. Note also that if the house is homestead the creditors cannot force a sale of the property.
When the parties obtain a divorce, normally the marital settlement agreement will include provisions on how the house is to be distributed between the parties and who will be responsible for the mortgage or that the mortgage will be refinanced, etc.. If the property is not included in the marital settlement agreement and the divorce is final, the the parties will continue to own the house together; however, it will become owned as tenancy in common. This is a type of ownership where each party owns a share of the whole of the property. In this case, each spouse would own one half of it and this half can be sold to another or if one of the parties dies then that party’s one half share will be subject to inheritance laws. In addition, each party will have the right to full access to occupy the home. If the parties have a mortgage on the property, then each will continue to be responsible for payment on it and if one party does not pay their share of the mortgage, the other will be responsible for paying it. There will be no recourse in the divorce court after the marriage is finalized if the parties do not include it in the divorce.
Therefore, in short, if you own a home and you are married, unless you provide for it in the divorce, then both the wife and husband will continue to own it as tenants in common as explained in the paragraph above.
By Lynette Silon-Laguna Google+