In 1994, prior to the parties’ marriage, the husband bought a house, titled in his own name, using separate funds totaling $230,000. However, wife also contributed $30,000 of her own funds to help close on the property. The wife then paid the mortgage for two years prior to the parties’ marriage as well as during the parties’ marriage through 2003.
Here, the Appellate Court disagrees with the Supreme Court’s decision that, due to the circumstances, the husband’s separate property has been converted into marital property. An economic partnership created by marriage cannot exist until marriage has occurred. Non-marital cohabitants may form an economic partnership but such a partnership can only be created by agreement and not by operation of the law. Title is also a major identifier of the nature of real property prior to a marriage. Furthermore, the facts here are not demonstrative of comingling. Comingling generally occurs when separate funds are deposited in a marital account through a deliberate act of the separate property holder. Here, the husband did not comingle or take any acts to convey the property to the parties jointly.
However, wife is entitled to recoup her equitable share of marital funds used to pay the mortgage which represents the husband’s separate indebtedness.