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Who Gets the House in a Divorce?

September 26 2018
by Leisl Bailey

who gets the house in a divorce

There are many factors that go into deciding who gets the house in a divorce.

As the martial home is often the most valuable asset on the table (and the asset to which both parties are usually very emotionally attached) choosing who gets to remain in the home can be one of the most frustrating parts of divorce proceedings.

In this article, we will look at the ins and outs of the process and discover which spouse ends up with the house.

Who Gets the House in a Divorce?

Here’s everything you need to know about who gets the house in a divorce:

Defining the Marital Home

For the purpose of asset division upon the dissolution of a marriage, the “marital home” is the house that the coupled lived in most recently during their marriage.

It does not matter if you purchased your home together before the wedding or after the wedding, if a couple owned the property in question at any point in their marriage (and still owns it at the time of their divorce) then it can be considered the marital home.

Community Property VS Equitable Distribution

The laws regarding asset division and post-divorce property ownership vary from state to state. This is because there are two different types of ways that states deal with divorce.

In community property states, you and your spouse will be required to divide all of your assets directly in half. This could be interpreted to mean that, legally, you are both entitled to 50% equity in the marital home.

As divorced couples often prefer not to remain financially tied to each other, a popular option for people in community property is to sell the home and split any profits that they make.

Another common outcome is this: let’s say a couple has $200,000 in equity in the family home. In a community property state, a judge might decide to award the house to the wife, as long as she pays her husband his $100,000 share (called a buy-out!) or vice versa.

There are currently nine community property states:

  • Alaska*
  • Arizona
  • California
  • Idaho
  • Louisiana
  • Nevada
  • New Mexico
  • Texas
  • Washington
  • Wisconsin

*Alaska is an “opt-in” community property state. This means that both parties can choose whether or not they would like their property to be considered a community or not.

The other kind of states are known as equitable distribution states. If you live in an equitable distribution state, it means that the judge assigned to your divorce proceedings will examine your property and divide it fairly.

This does not mean evenly or even equally – just fairly. This leaves the law up to interpretation because so much of who gets the house in a divorce is then left up to the discretion of the particular judge.

If you live in an equitable distribution state, you typically need a good lawyer and great reasons as to why the house should belong to you.

What If I Go To Court?

Having a case for why you should get the house in a divorce is especially important if you live in an equitable distribution state. This is because you are working to solely convince the judge that you are party who deserves to stay put.

If you choose to take asset division to court, instead of working it out privately or through mediation, the court will likely consider the following things about each party involved:

  • Current financial circumstances
  • How much he or she paid into the home
  • Age and physical and mental health
  • Marital misconduct, if any
  • Each spouse’s employability and job skills

There is one main factor that many judges consider when deciding who gets the house in a divorce. That factor is who has custody of the kids if there are any minors involved.

The aim of the court is to cause as little distress for children as possible. Because of this, the parent who has custody of the children for a greater amount of time will likely be the one who gets to stay in the marital home.

This way, the kids experience minimal disruption and can live in the same house and attend the same school, at least for a period of time.

Defining Separate Property

Sometimes, it does not matter if you live in a community property or equitable distribution state, a home is considered separate property and belongs solely to one spouse – so it’s completely off the table for negotiations.

Property is typically considered separate property if it was gift or inheritance of one spouse. It is also considered separate if a spouse purchased it before the marriage and the other person’s name was never on the title and/or they made any payments on it.

A home can also be considered separate property if it is designated as such in a prenuptial agreement.

These definitions of general property, however, are just that – general. You should always check with your lawyer to understand the particulars of your personal situation for the best results.

One Last Thing – Differed Distribution

Sometimes a court will allow a couple to hang onto a home if the housing market is soft. This kind of ruling is called differed distribution.

Usually, the spouse who is awarded the home is allowed to stay until the youngest child in the picture turns 18 years old. At this point, the home is sold and the money made from the sale must is divided according to the directions of the court.

As part of a deferred distribution deal, a judge typically mandates that one or both spouses cover maintenance fees, taxes, mortgage payments, and homeowner’s insurance for the duration of the “waiting” period. After which time, both spouses are free from their obligations.

Going through a divorce and need help selling your home? Why not list with Clever!

Our agents work for a flat fee and can take the stress out of selling.  Call us today at   1-833-2-CLEVER or fill out our online form to get started.