No, probably not. Separate property (which is what she is claiming the down payment is) is not generally subject to division by the Court in a divorce. There are exceptions but they are relatively rare. Separate property can exist when there is: (1) a prenuptial agreement; (2) gifts between the parties; (3) retirement benefits; (4) inheritances of money or property that have not been commingled; and, (5) certain other rare circumstances. Commingling means taking what may otherwise be considered “separate property” an introducing it into the marital estate – – – like using it for a down payment on the martial home. There are other factors like the length of the marriage and the relative financial situations of the parties but generally “commingling” changes the nature of property from “separate” to “marital”. This is an extremely complicated area of the law because so many different factors need to be considered. Don’t go it alone. Contact me – I can help.
Michael Olson is a partner with the law firm of Matecun, Thomas & Olson, PLC in Howell. He answers readers’ questions on legal matters affecting individuals, their families and their businesses. Email questions to [email protected], or if your question is urgent, call (517) 548-7400. The information in this column is not intended as legal advice.