Who Gets the House in Divorce?

When you and your spouse own your home, the question of what happens to the family home when you divorce can be a thorny issue. If you're like most American homeowners, the property is probably your most valuable asset—which can make it difficult to achieve a fair property division in your divorce.

In addition to financial considerations, there are emotional consequences to selling, keeping, or giving up the family home. Here are some things you should think about if you're hoping to keep the house after your divorce.

If You Want to Keep the House, Make Sure You Have Good Reasons

There are plenty of bad reasons to fight over the family home, including spite, control, vindication, and greed. While it may be hard to leave your home, you need to consider what's best in the long run for you—and your children, if you have them.

Still, you might have good reasons to stand your ground if you want to keep the family home after your divorce. But you should be clear and honest with yourself about your reasons (and what's behind them), because the consequences of fighting to stay in the house can be far-reaching and long-lasting.

Who Gets the House in a Divorce With Children

Divorce can be stressful for school-aged and younger children. Being forced to move from the home where they've been living can add to their emotional distress, especially if that also means changing schools and moving away from their friends and after-school activities.

If you'll be the primary custodial parent after your divorce (meaning your children will live with you most of the time), you can argue that it's in your kids' best interests for you to get the family home so they can stay there with you. If you need support for this argument, you might seek a custody evaluation and ask the evaluator to specifically address the potential impact on your kids of any disruption in their living situation.

Some state laws allow (or even require) judges to consider the effect on children when they're deciding what to do with the family home. For example:

• In North Carolina, judges must consider whether the custodial parent needs to own or live in the family home when they're deciding on a fair property division. (N.C. Gen. Stat. § 50-20(c)(4) (2024).)
• Ohio judges may decide to minimize the disruption of divorce on children by awarding the family home to the custodial parent or at least allowing that parent to stay in the home for a reasonable amount of time (more below on that option). (Ohio Rev. Code § 3105.171(F)(3) (2024).)

When You Want to Keep the House Because of Emotional Attachments

Understandably, you may have strong emotional connections to your family home. Maybe you've put a lot of work into building or renovating your dream house, or the property has been in your family for generations.

However, emotional attachment to a house isn't necessarily a good reason for trying to keep it after your divorce. You should think long and hard about the consequences of a legal battle if you and your spouse can't agree on the issue, as well as the potential downsides of staying in the home as a newly single person (more below on both of those issues).

Make Sure You Can Afford to Keep the House

Unfortunately, you need to balance your desires against the financial realities of life after divorce. You probably already know that it costs more to maintain two households than a combined one.

One of the top financial mistakes that you can make in a divorce settlement is to fight for the family home when you won't be able to afford it. There are several ways this mistake can play out.

The Downsides of Refinancing the House After Divorce

If you want to negotiate a buyout of your spouse's interest in the house, the usual way to do that is to refinance the home loan. You'll generally need to apply for a new mortgage in your name alone.

Even if you qualify (more on that below), the refinancing will typically lead to higher mortgage payments than what you've been splitting with your spouse. That's largely because you'll probably need to borrow from your share of the equity to pay your spouse's share. If the current interest rates are higher than they were on your original home loan, that could also increase your monthly payments.

In addition to the higher mortgage payments, you also need to consider whether you'll be able to afford to pay the other expenses of owning a home, including:

• property taxes
• premiums for homeowners' insurance (which is increasingly expensive or even unavailable in some areas)
• repairs and other maintenance costs, and
• condo or homeowner association fees if they apply.

What If You Can't Refinance the Home Loan After Divorce?

When you're hoping to refinance your house as part of a buyout in the divorce, you'll need to start by:

• determining the value of the property and each spouse's share of the equity
• agreeing with your spouse on a buyout amount, and
• doing some preliminary research on mortgage loans, including speaking with various lenders and getting prequalified for a loan.

If it turns out that you won't qualify for a home loan from a traditional lender, other possible options include:

• trading away your interest in other marital assets like retirement accounts (more on that below)
• borrowing the money for a buyout from family members or friends, if you know someone who's able and willing to do that, or
• agreeing to co-own the house with your ex for a certain amount of time after the divorce, deferring the sale until your kids are grown or you can afford a buyout.

If none of these alternatives are feasible in your situation, you'll probably have to sell the house and split the proceeds as part of your divorce.

The Risks of Giving Up Retirement Assets to Keep the House

You and your spouse's interest in retirement accounts will also be split in your divorce. Depending on how much you've been able to put away for retirement (and how much your employers have contributed), you might have enough interest in those assets to trade with your spouse for the family home.

There are risks with this option, however. You could be trading away your future security—particularly if you don't have that many working years left to make up for the loss in retirement income. Also, you might run into problems trying to remove your spouse's name from the mortgage when you haven't refinanced.

Try to Work It Out With Your Spouse

Couples can—and usually do—manage to agree on how to divide their property during divorce. Taking this route has several advantages. For instance:

• Control over the outcome. Whether you and your spouse reach an agreement on your own, in mediation, or with the help of your lawyers, you'll have more say in the outcome than if you have to leave the decision to a judge, who doesn't know you and can't be expected to understand all of your family's hopes and needs.
• Less cost and stress. The cost of divorce skyrockets if you have to go to trial. Although there are costs for mediation, they're significantly less than a drawn-out legal battle. Also, if you and your spouse can reach a comprehensive divorce settlement agreement by the time you file for divorce, you may be able to take advantage of the additional cost-saving benefits of streamlined uncontested divorce procedures in your state. Even if you decide that you need to hire a lawyer, the legal fees will be lower if you can work out a property settlement before going to trial.
• Innovative solutions for the family home. Couples who can cooperate and work together during and after their divorce may be able to come up with other ways of dealing with their family home besides a buyout or sale, including co-ownership or "birdnesting" (keeping the house and letting the kids stay there while the parents rotate in and out).

What to Expect If You Go to Trial Over the House

If you and your spouse absolutely cannot agree, a judge will hold a trial and decide for you. When that happens, the judge will follow your state's laws on dividing property in divorce.

Very few states require a strict 50/50 split between spouses, but most judges will aim for an approximately equal division unless that wouldn't be fair under the circumstances. That means that judges will often order couples to sell their house and divide the proceeds when they don't own enough other assets to balance out the property distribution if one spouse keeps the house. That could be the outcome even if it's not a good time to sell.

In some states—like California—judges may decide to order a deferred sale of the family home to allow the custodial parent to stay there with the children, if that would be both economically feasible and necessary to minimize the negative effects of the divorce on the kids. (Cal. Fam. Code §§ 3800–3810 (2024).)

What Can Happen to the Family Home During a Divorce?

Judges may issue temporary orders during a divorce that affect what the spouses may do with the family home until the divorce is final.

Temporary Orders Prohibiting House Sales or Transfers

It's common in divorce cases for courts to issue temporary restraining orders that prohibit either spouse from selling, transferring, or mortgaging the marital home during the divorce proceeding, without the consent of the other spouse or a judge.

In some states, these orders are automatically effective as soon as one spouse files for divorce and serves the divorce papers on the other spouse. In other states, either spouse may apply for the order. Either way, you may not be allowed to sell or encumber the property even if it's in your name alone.

Temporary Orders for Possession of the Family Home

If you and your spouse haven't agreed on which of you will stay in your family home during the divorce, you may ask the judge to issue a temporary order granting you possession of the house while your case is ongoing. For example, if you have temporary custody of your children, you might argue that it's best for them to stay where they've been living, at least for the time being.

You'll need to file a formal request (often called an "Order to Show Cause") along with a declaration setting out the reasons you should stay in the home until the judge issues final orders in your divorce. After your spouse has been served with the paperwork and has had a chance to respond, there will be a hearing on your request.

Getting Help

If you're intent on keeping your family home, it's critical to have a realistic picture of what you can afford. It may be wise to speak with a financial advisor who can help you figure out whether you'd be able to cover the expenses of the home after the divorce and still meet your other financial needs (including saving for retirement).

If you're thinking about co-owning your home after the divorce, you may want to consult with a tax advisor (or a lawyer with specialized knowledge in this area) to learn about the tax consequences.

Also, if you and your spouse are having trouble agreeing on what you'll do with your home when you divorce, a good divorce mediator can help you identify the sticking points and come up with solutions that work for both of you.

But if mediation doesn't work or isn't appropriate in your situation (such as when there's domestic violence or a serious power imbalance between you and your spouse), it's best to consult an experienced local family law attorney who can help protect your legal rights and financial interests, as well as the best interests of any children you have living at home.