Occasionally, clients ask us who will get the house in a divorce. The short answer (that our clients don’t like to hear) is that it depends.
Is the House Marital Property or Separate Property?
Property that was purchased by one of the spouses while they were married is called Marital Property. It doesn’t matter if the title features one name or both names. As long as it was purchased during the marriage, it’s considered marital property.
Separate property pertains to property that a spouse purchased prior to their marriage. For example, if someone purchased their first house after college and then a few years later got married and lived in that house together, the property is considered separate.
The type of property involved is important because it plays a role in the divorce. If the home was considered separate property, it stays with whoever purchased it. If it’s marital property, the home’s value will be considered part of the assets getting split.
Who Gets the Kids?
Another factor that can determine who gets the house is the kids. However, if no young children live in the house at the time of the divorce, this doesn’t apply.
For instance, suppose the father has visitation rights, but the mother gets custody of the children. In that case, the mother is more likely to get the house in the divorce because it provides her with a good place to raise the kids.
Equitable Distribution Plays a Role in Who Gets the House
As you go through the divorce process, you’ll likely hear the term “equitable” a few times. Essentially, this means fairly divided. Note that it does not mean equal – although many times, that’s how it shakes out.
Let’s take the case of a couple that has a home worth $200,000 and financial assets worth $250,000. Their total assets are $450,000.
With equitable distribution dividing assets and finances, the court may say one spouse can keep the home and $25,000 while the other spouse gets the rest of the $225,000 in assets.
Unfortunately, the case usually isn’t this simple. Still, it gives you an idea of how equity comes into play in who gets the home.
Who Can Afford the House?
It may seem obvious, but it should be said – if one of the people getting divorced can’t afford the home on their own, they probably shouldn’t stay in it.
For example, maybe it was a two-income family, and the home was a significant expense. It will probably be hard for one person to pay for it after dropping down to one income. Things like alimony or child support help, but they shouldn’t be relied upon to pay the mortgage every month.
Can the House be Sold?
Now and then, the court will order the home to be sold. This makes it easier to divide the assets between the two individuals because it brings extra cash into the picture.
For personalized guidance and advice on how to secure your home in your divorce, send us an email at firstname.lastname@example.org. We’re here to help you in any way that we can.