Who Gets The House In A Divorce?

Posted on: 12 January 2016

Dividing assets during divorce can be a messy and drawn-out process, especially when it comes to high-value property such as your home. The following offers an in-depth explanation of what may happen to your home as you and your spouse undergo divorce proceedings.

The Date of Home Purchase Matters

One of the most important considerations for determining what happens to a house after divorce is the date that the home was purchased. If you purchased your home prior to the marriage, then the property is considered separate property in the eyes of the courts. That means you'll be able to keep the entire house, along with any equity built in the home over the years.

If you purchased your home during the marriage, however, the courts will consider it marital property. This means the property must be divided equitably between you and your spouse. Commingling can also cause a property that was once exclusively owned by one spouse to be subject to partial division, depending on the extent of the commingling.

Your Options for Handling the House

There are several options available for handling the house during divorce proceedings:

  • You and your spouse may sell the house and split the proceeds equally among each other, either through a mutual agreement or a judge's written order. If your spouse contributed substantially more or less towards payment of the mortgage, it's possible for your spouse to receive a split commensurate to their contribution.
  • You or your spouse can also choose to buy out the other spouse's ownership in the home, either with liquid cash or the surrender of other assets equaling the other spouse's stake in the home.
  • Both spouses can agree to defer the sale of the house until their children have reached a certain age. This allows the spouse who has primary custody of the children to keep living in the marital home until the children move away for college, for example. Afterwards, the house can be sold and the proceeds split between both spouses.

Until the property is sold, the judge may grant your spouse exclusive occupancy rights to the home if they're unable to find alternative lodgings while the divorce is pending. This means that the other spouse may have to move out of the home, regardless of whether he or she also owns the home.

It's always a good idea to consult with your family law attorney before making any decision concerning your home. This can help you avoid some of the pitfalls associated with dividing property during a divorce.

To contact a family law attorney, get in touch with a law firm such as Ivy Law Group PLLC.