Can Unmarried Couples Have Divorce Court Divide a Home?

Posted: 5 July, 2023

Under Nevada law, a home purchased by a husband and wife is community property.   In a divorce all community property is divided evenly.  So, the house (technically the equity in the house) will be divided evenly.

How Nevada law divides a home owned by a husband and wife is fairly clear.   But what happens when an unmarried couple purchase a home?  This is where the divorce laws are murky and where a skilled divorced attorney is needed.

When unmarried couples, cohabitants, purchase a home and later separate, the court has the authority to decide how the equity in the home should be divided.   There are several ways a court can divide the equity in a home when cohabitants; are not married;  divide based on the way the deed is written,  divide based on finding an express or implied partnership, or divide based on community property by analogy.

Joint Tenants

Two unmarried can purchase a home.  When they sign the deed, they can choose different ways to hold the title of the home.  The title, and not the mortgage, is the document confirming ownership. The deed is the document which tell the world who owns this property.  The mortgage is the loan on the property and is not proof of ownership.

When singing a deed there are the names of the owners and then a phrase such “joint tenants”, or “tenants in common” The phrase used on the deed is an indicator of the type of ownership.

Joint tenancy implies equal ownership.   Joint tenancy is a type of deed which gives each person listed an undivided equal interested in the property.  Joint tenants also provides rights of survivorship.  This means if the other owner dies, their interest automatically transfers to the surviving owners.

Tenants in common is different.  Tenants in common does not imply equal ownership.  One tenant may own 80% and the other partner may own 20%.   Hopefully, there is a document stating the percentages each tenant owns.  If there isn’t a document, then the court will look to the amount of monetary contributions each tenant made.

In the absence of an agreement between two unmarried parties purchasing a home, each party is entitled to share in the property in the proportion that his or her funds contributed to the acquisition.  This means, even without their name on the deed, a cohabitant may have ownership in a home based on a partnership.

Implied Partnership

A partnership is when two or more people come together in a venture to earn a profit.  There can be paperwork to confirm the partnership.  However, paperwork is not required.

Two unmarried people coming together to purchase a home could be viewed as a partnership.  To be a partnership, there must be an express or implied contract to form a partnership.   Express is an agreement in writing.  Implied is one the court can see by the actions of the parties.

If an express or implied agreement is not found, then the court will revert to partnership rules of law.  Under Nevada law a partnership is presumed to be equal ownership.  This presumption can be overcome by showing there was a different agreement.  If the presumption is broken the ownership percentages will be based on the amount each party contributed to the partnership.

Community Property by Analogy

Community property is a label reserved for couples who are married.  However, our court has found cases where the couples are not married but treated the property as if they were married.  The court calls this community property by analogy.

The court will look for an express or implied agreement between the parties to acquire and hold property as if they were married.  If this is found then the property will divided as any community property would be divided.  Which is evenly under Nevada law.

An express agreement is an agreement that is written.  An implied agreement is one that is found through the actions.   Couples can have a written agreement to how the house should be held, or their actions can be used as evidence of how they “intended” the home to be held.

Pooling of funds is evidence to show an implied contract to hold the home as community property.   Purchasing the home, living together and then getting married is strong evidence of the couple’s intention.   In Carr-Bricken v. First Interstate Bank, (1989) the Nevada divorce court found the future marriage extremely persuasive the couple intended to treat the property as community property.   The divorce court divided the equity in the home evenly, even though only one person had their name on the deed.

No Interest

What if the cohabitant does not have their no name on the title, there is no proof of an implied partnership, no pooling of money, and no proof of intent to treat the home as community property?

In this scenario, the cohabitant likely has no interest.  The cohabitant is nothing more than a roommate.   The roommate could argue unjust enrichment.   By showing the amount of rent paid is more than a reasonable rent, the roommate could show the owner received more funds than fair.  The owner has been unjustly enriched.