Is a home bought before marriage, or money from parents, also divided?

Property division (재산분할) is a system for dividing assets the spouses built together during the marriage (Civil Act (민법) Article 839-2). So assets owned before the marriage, and assets one spouse received by inheritance or gift even during the marriage, are called separate property (특유재산) and are in principle excluded from division.

However, if the other spouse actively contributed to keeping that asset, preventing it from shrinking or increasing its value, it is exceptionally included in the division. The longer the marriage and the more the assets were mixed, the harder it becomes to set it apart as separate property.

Even for the same home, the ratio differs depending on the length of the marriage, how the assets were built and whether both spouses worked, so other people's cases cannot simply be applied to yours. Also remember that the division ratio is set for all the assets as a whole, not for a single home.

Assets whose ownership is unclear are presumed to be jointly owned by the spouses (Civil Act Article 830(2)). If the spouse claiming separate property cannot show it with records, the asset may be treated as built together during the marriage.

If you lived together in a home you bought in your name before the marriage and your spouse helped repay the loan or paid maintenance fees, taxes or repair costs, a contribution may be recognized to that extent. If the marriage was short and you repaid it alone, it may be excluded from division or the contribution may be valued as small.

It is different if money you saved before the marriage became the seed money for a home bought after the marriage. That home is an asset acquired during the marriage, so the whole of it is subject to division, and the money you put in is often reflected as a factor that raises your contribution when the division ratio is set. The calculation is not done by first deducting the pre-marital money and splitting only the rest in half.

If you sold your pre-marital home and used the money to buy another home after the marriage, it is easier to have it recognized as your contribution if you show with transfer records that the flow of money is continuous.

Money one side's parents contributed toward buying a home is usually seen as given to their own child and is assessed as that child's contribution. However, the assessment differs if there are circumstances showing it was given to both spouses, or if it was a loan that must be repaid.

Assets inherited during the marriage are also in principle separate property, but if the other spouse helped repay the loan on an inherited home or managed it for a long time, a contribution may be recognized.

Wedding gifts to the in-laws, wedding presents and household items exchanged at the wedding are a separate issue. If the marriage lasted a considerable time, they are often hard to get back, so check this separately.

If loans were repaid with your parents' money, keep those transfer records too.

The spouse claiming that an asset is separate property must show it with records. These become harder to obtain over time, so get them now.

• Transaction records showing your account balance just before the marriage
• The home sale contract and transfer records showing which account the deposit and balance were paid from
• Records of money sent by your parents and messages exchanged at the time
• Records showing whose account loan repayments were made from
• For inherited assets, inheritance documents and the registered ground of transfer
• Records showing the loan balance around the time of the marriage (a loan reduced during the marriage may be argued to have been repaid jointly)

Severance pay and retirement pensions accumulated during the marriage can be subject to division regardless of whose name they are in. If your spouse has not yet retired, the amount of retirement benefits expected if they retired around the close of the hearings in the divorce lawsuit is subject to division (Supreme Court en banc decision of July 16, 2014, 2013므2250). If it is a job held since before the marriage, that period may be considered when assessing contribution, so check both the start date of employment and the date of marriage.

In a judicial divorce, the assets and their values for property division are in principle set as of the close of the final hearing on the facts. So if home prices rise during the lawsuit, the new market price is reflected. However, assets one spouse newly built up alone during a long separation may be excluded from division.

The value of real estate is set through appraisal or market price data, so if prices are moving sharply, you also need to decide in advance how to submit market price evidence.

At Jisan Law, we organize in a table in the consultation when and with whose money each asset came about, and separate what to argue as separate property from what to argue as contribution. If it is hard to bring all the records at once, message us through the chat on this page to discuss first.