Who Gets the House in a Divorce?

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by Chris Torrone

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12.21.2022

There are several important questions that arise during divorce. “What should I expect from the trial?” “How is custody going to work?” “What about child support…alimony?” “How do I make sense of life after divorce?” One of the most pressing questions remains “How will our assets be divided?” Most importantly, who gets the house in a divorce? It’s a significant investment and something that often carries a great deal of emotional attachment and personal meaning. 

Sometimes, spouses come to an agreement on the home quickly. But most of the time, it takes a while to work out through discussion, mediation, and the court’s discretion. Questions over what constitutes community property (marital assets), and separate property abound. And these debates over the rightful ownership or fair division of marital property and the eventual fate of the real estate you call home, take time and research to figure out. 

Family law attorneys and divorce lawyers are not only your best counsel with questions regarding child custody, minor children, ongoing communication between separated couples, and divorce laws, they are your primary advocate when you’re trying to understand the division of property, the marital residence, retirement assets, and retirement accounts, community debt, mortgage payments, equitable distribution, and everything surrounding the marital estate. 

Our homes don’t just provide shelter. They are full of memories. It is usually the most important place for your kids’ development. Homes become their place of safety, their comfort, somewhere they can really be themselves, the place where they can begin laying the earliest blocks for the foundation of their dreams. So, who eventually gets the home and whether it gets sold during the settlement agreement, will affect each person in the family in a unique way. 

small home ex spouses are negotiating for during divorce

What Kind of Property is It?

One of the first things all parties attempt to figure out is whether the home is separate property or joint property (community property). In the most straightforward examples, couples would have purchased their home, often their largest asset, from money obtained during the marriage. The home would usually be divided 50/50 as marital property in this case. This means each of you would be entitled to half of the equity of the home. 

In this case, spouses sometimes sell the home and split the equity profits. However, there are sometimes tax consequences involved when you get rid of this valuable asset. Most couples avoid the capital gains taxes because they’ve lived in their home at least two of the past five years. If, on the other hand, the two of you recently purchased your home, and it’s less than two years in your possession, you may face a sizable tax burden. 

If you don’t sell, the one who gets awarded ownership of the residence may be required to refinance the mortgage loan to pay their ex the 50% owed, if they don’t already have enough funds to cover it. Unsurprisingly, this can create conflict when individuals get stubborn and don’t want to walk through the process of timely property distribution or cash payment. 

Other times, things get more complicated. The down payment may have been covered by one spouse with separate property they came into the marriage with, while the ongoing mortgage payments are paid by the other spouse using community property earned during the marriage. In this instance, the court may award the individual with some separate property status possession of the home, while sometimes requiring them to pay the other party a certain amount to achieve a more equitable division. 

There are several factors and variables that play into the judge’s decision. It may take some time and thorough research to really get a clear picture of the financial situation of each individual so that a fair and beneficial ruling is made. 

Ability to Cover the Cost

Who can afford the home? The courts will definitely take this into account. No matter how assets are divided, houses are sometimes given to the party with the greatest ability to cover the cost of the mortgage, property taxes, insurance, and upkeep. The more affluent spouse may be required to pay spousal support or a greater sum up front, to equalize things more, and make it so either party can afford the home.

The courts like to award the home to the spouse who receives primary custody of the children.This helps to protect the needs of the children, so they’ll continue to live in the home they’ve grown up in. This isn’t guaranteed and the details of these decisions take time and great consideration to work out and require a good lawyer by your side. 

Business in the Home

This is another consideration the courts will weigh. If one spouse has managed a successful business in the home, specifically one that requires use of the home for its operation, like a home-based beauty salon, massage therapy clinic, or adult-care units, the judge may award this individual the home since their primary source of income stems from use of the residence. In this case, the home is often awarded to this individual to allow for their continued business operations and income. 

 

Home being negotiated for by a couple seeking divorce

Determining the Home’s Value

No matter what happens to the home, its value must be ascertained. Thankfully, strict standards apply. A passing analysis, tax assessments, and online realty company estimates will not be accepted. An experienced, licensed appraiser must make a full evaluation and appraisal of the home’s current market value. 

The court will sometimes allow further arguments regarding the home’s value by both parties. But these rarely hold much weight since it is the official appraisal that is given priority. 

You Can Both Decide

Remember, it doesn’t have to be up to the judge to decide the fate of your home. If the two of you can work it out peaceably and fairly, and come to an agreement that suits you both, you can do so. This may save you a lot of time and help you avoid several headaches. Still, it may be wise to have an objective professional work with you both to help you come to a reasonable agreement, either an advocate or lawyer will do. 

The benefits to handling things yourselves is that you’ll be able to talk everything over in detail, take your time, work through every detail, and hopefully show ample respect to one another when you come to an agreement. 

The downside is that the two of you may simply not be able to come to said agreement. There may be too much history and bad blood between you. If you’re constantly angry, hostile, and argumentative, coming to a reasonable solution may be impossible. An advocate or attorney(s) can help a lot in this case, but a judge might be able to come to a pretty equitable solution. 

A judge is not a party with any personal stake in the matter. This objectivity is a positive in most cases, as they won’t be swayed by aggressive, manipulative, or highly emotional pleas. Unfortunately, this means you’re leaving the fate of your house and part of your future up to a perfect stranger. They may not take more complex or subtle aspects of finances or personal situations into account. You will need to decide which option seems best for the two of you. 

Other Considerations

During the initial divorce process, a judge may issue temporary orders regarding possession of the home. This ruling is often made to benefit the kids during this time, to maintain some stability and comfort for them during this time. 

Additionally, if there are pressing matters like domestic violence against one spouse or the children, or other factors like drug use, the judge will generally award the home temporarily to the one who doesn’t pose a threat and is caring for the children.

It is important to know that all temporary orders are just that: temporary. Many things can happen and a lot of information can surface during your deliberation and divorce process. Don’t just assume the earlier temporary orders will be followed by your judge. They aren’t required to keep these rulings and often shouldn’t, since details will change and new info come to light. Prepare accordingly and work closely with your attorney. 

child of parents seeking the home during divorce

In Closing

There is certainly more we could delve into. Yet, this quick guide should serve as a primer when you’re preparing to negotiate the ultimate fate of your home. Always prioritize your children, their health and well-being, their stability and safety. Make choices with a long-term vision in mind, especially as the custodial parent, not ones that simply serve temporary or emotional needs right now. 

Never assume you understand it all. Don’t get taken advantage of, but also don’t keep a paranoid outlook. Educate yourself and maintain solid communication with your attorney. Make sure to go to your divorce attorney with all questions about your home, assets, custody, and all other relevant matters.

Avoid fighting with your ex, since this makes negotiations more cumbersome and can alienate your kids. Keep good records, don’t hide assets, and work toward an agreement that proves equitable and healthy for everyone, especially for the children. 

Torrone Law empowers and protects individuals and families walking through divorce, custody, and adoption cases. Call or email us today with questions and find out how much better life can be with a caring, experienced advocate by your side. 

To learn more about what happens to your house during divorce, see our frequently asked questions below.

FAQ

 

Who decides who gets the home in my divorce?

It depends. If the two of you can work it out peaceably and equitably on your own, you may do so. This will take transparency with one another, respect, research, and a desire to work things out in a manner that protects your children’s future and equally benefits both parties.

However, in many divorces, the decision is left up to the court. The judge will take all evidence into account, along with statements from each spouse and your attorneys, and make the choice they deem is right for everyone.

Who is likely to be awarded possession of the home?

Though it’s never guaranteed, judges usually like to give the home to the parent with majority custody of the children. This maintains the kids’ security, stability and environment, their safety, and their health and well-being. 

However, if one party holds more individual property within the home, such as one who made the down payment and additional payments with money they brought to the marriage, they may be given the home. Still, the one who keeps the home will often need to award the other spouse with an equity share in the home or a cash payment to equalize the asset split, especially when the home was paid for with community property. 

Will I have to sell the home to pay my spouse their share of the property?

Not necessarily. It’s not always wise to sell, especially when your kids have grown up there. Instead, you can pay your ex whatever amount the judge decides on from your own savings or other investments, or more likely, by refinancing your mortgage to gain access to immediate funds. 

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