Who Gets the House in a Divorce?

A divorce comes with its fair share of challenges, including property division. After all, your house might be the biggest asset that you will have to split in a divorce. Figuring out how to divide it equitably can be fairly challenging. And if dealt with without any thoughtfulness, it can become the major cause of disputes between you and your spouse.

So, how does property get divided in a divorce? How do you decide who gets the house and who doesn’t? It’s fairly more complicated than a simple cut-and-dried situation.

Let’s take a closer look at the issue of property division in divorce. As well as, how you can work everything out smoothly.

The Nature of the Property

Before deciding who gets the house in a divorce, you must ask yourself if the property is marital or separate. As well as, who owns it. In most instances, both spouses will have a claim on ownership, but that isn’t always the case. The best scenario is if you live in a marital or community property state. I.E., you got married, bought a home together, and are living in it. In such an instance, each spouse becomes entitled to receive 50% of the equity.

However, most often, the vast majority of states are equitable distribution states, not governed by community property rules. For such states, you can reach an agreement with your spouse on the division of the asset. Or a court will decide for you. Since it is equitable distribution, the court will try its best to be fair in dividing the property. But it doesn’t always ensure that each spouse will receive 50% of the equity.

Moreover, if one spouse owned the house before marriage and kept it as an individual asset during the marriage, then they will get to keep it in a divorce. However, if the other spouse contributed to the upkeep and mortgage payments of the house during the marriage, then the house can become a marital asset. In some instances, the spouse might give up ownership of the house in exchange for a greater interest in another asset, such as the retirement account.

Who Decides the Ownership of the House in a Divorce?

Either both the spouses can figure out who rightfully owns the house or how it’s divided during the divorce, or a judge will decide for you. If you can come up with a mutual agreement for property division in divorce, you will save a lot of time, money, and headache.

However, make sure that you don’t get outmaneuvered in negotiations and end up with less than you rightfully deserve. A lopsided deal will squander any goodwill between you and your spouse. More importantly, if there are kids involved, it will affect them as well. On the other end, if you let a court decide, you will have to put your trust in a stranger. You will have to hire a lawyer, and that will cost you your time and money.

So, if you think you can work things out on your own, give it a shot. However, if you get a hint of wrongdoing, don’t take any chances and hire a professional to get you the fairest deal possible.

What Factors Will the Court Consider for Property Division in a Divorce?

A court’s decision on who gets the house is generally tied to the overall settlement agreement. It’s typically simpler in a community property state as compared to an equitable distribution state. The primary deciding factor that the court considers is the goal for the property given by both sides. If one spouse wants to keep the property for whatever reason and the other wants out, it will be easier to decide what to do. Similarly, if both parties want to sell the house, it will be a lot easier to manage the division of the asset.

However, if both parties want to keep the house. The judge will base their ruling on the needs of each party. Factors that might sway the decision include the involvement of children, the age, health, and financial condition of the spouses. As well as, who has the primary custody of the kids, and more. Each state has laws that determine the factors a judge must consider for the proper division of property during a divorce.

How to Divide the House in a Divorce?

So, how does property get divided in a divorce? Depending on the goals of each spouse, there are various ways in which you can divide the house. The best way is to sell the house and divided the proceeds accordingly. However, when one party wants to keep the house, they can buy out their spouse at an agreed-upon price to become the sole owner of the property.

If you intend to buy out your spouse, you will have to determine the buyout amount. The first step is to figure out the value of the house by obtaining a formal appraisal from a qualified real estate appraiser. A formal appraisal will help you protect your financial interests. Knowing the value of your house will also help you calculate the equity and the buyout amount.

Lastly, the spouse who wants to stay in the house, maybe to raise the children, can come to an agreement with the other spouse to sell the house at a later date. This co-ownership through a deferred sale will give both parties the time to resolve their outstanding divorce issues. However, it will lead to a compromise on the part of the spouse who wants out because the equity in the home will remain tied up.

Who Stays in the House during the Divorce?

It depends on what you or the court decides. If one spouse voluntarily leaves during the initial separation, you can choose to continue that agreement. In the case of domestic abuse, the abusive spouse is typically forced to stay away from the property via a restraining order.

Usually, the court also gives preference to the spouse with children to stay in the house during the settlement period. However, they can also choose to move out and live with friends or relatives. When there is animosity and reluctance to leave on both sides, the court steps in to decide who gets to stay.

The Bottom Line

At the end of the day, you need to ask yourself if you really need the house. After all, depending on your relationship with your spouse, you might have to hire a lawyer and head to the court for appropriate and fair property division in divorce.

So, ask yourself why you’re fighting for the house. Is it because you need stability for your children and yourself or due to an emotional attachment? Whatever your reason is, make sure that you are not harming your future in the process, and if it feels like the house is surely worth the fight, only then pursue the legal route to owning it after your divorce!