Who Gets the House in Divorce?

This article provides a few tips to help you navigate through this difficult issue.

By , Attorney · UC Law San Francisco
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During a divorce, there is often quite a bit of controversy over the marital home. The family home is sometimes the most valuable asset in a divorce. In addition to the purely financial aspects of the home, leaving or selling the family residence can by very emotional, especially when children are involved.

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

If you're going through a divorce, and you want to keep the family home, there may be good reasons to stand your ground. Because selling or keeping a home after divorce can be a major, life-changing event, it's important to know that your reasons are sound, and that keeping the home will be in your best financial interests.

The kids. School-aged children may be traumatized by a divorce, and being forced to move can compound their emotional distress. If you're worried about this and aren't sure what's best for your family, consider speaking with a child psychologist or family therapist that who can help you figure it out.

Emotional attachment. It's often a very emotional decision whether to keep the family home; and although emotional attachment is not necessarily a "good" reason, it's an understandable one. Many spouses become attached to their home because, for example, they've put lots of work into building their dream home, and it holds many great memories, or because their home has been in one spouse's family for many generations.

There of lots of great reasons to try and keep the family home, but there are also some not-so-good reasons: spite, control, vindication, and greed. Don't let the emotional aspects of a divorce cloud your otherwise sound judgment. While it's easy to see why it might be hard to leave, you also need to consider what's actually best for you in the long run.

If You're Going to Fight to Keep the Family Home, Make Sure You Can Afford It

Today, families need to balance their wants and desires against the sometimes harsh financial realities of life after divorce. Not all families are able to maintain exactly the same lifestyle they had prior to divorce.

While it would be nice to remain where you're comfortable and avoid the hassles of moving, staying put might not be the best financial decision for you. No matter how attached you are to your home, it's critical to have a realistic sense of whether you can afford it. If you give up everything else in order to keep the home, and then find that you can't cover the mortgage, property taxes, and maintenance, you may end up in serious financial trouble.

It may be wise to hire a financial advisor, or talk to someone who knows about financial planning, to help you determine whether, after the divorce, you'll be able to cover the expenses of the home and still meet your other financial needs (such as saving for retirement).

More Information

Learn more about this issue in our section on The Family Home in Divorce. See Nolo's Essential Guide to Divorce, by Emily Doskow, for detailed information.

Try to Work It out With Your Spouse

Many times spouses are able to agree how to divide property. It's usually in your best interest to work it out directly with your spouse because this allows both of you to have at least some control over your destiny and also allows you to avoid the costs and emotional stress involved in going to court. Moreover, you probably don't want a stranger in a black robe (the judge) making these tough decisions for you. Ideally, the decision regarding the family home should be based on mutual agreement, without court intervention.

If You End up in Court, Make Sure You're Informed

If you and your spouse absolutely cannot agree, then a judge will have to decide. The laws of your particular state will control how a judge will decide who gets the house after divorce. For example, in a community property state like California, judges are required to make sure all community or marital property gets divided as evenly as possible. So, if the family home was purchased during the marriage, and it has $100,000 in equity, a judge may award the home to one spouse (Spouse A) on the condition that Spouse A pay Spouse B his or her $50,000 share (referred to as a buy-out).

Or, under certain circumstances, the judge may order that the parties must sell the home, (eg., where the home presents a heavy financial burden). There are lots of ways a judge might decide the issue of "who gets the home." For more detailed information, you should contact an experienced family law attorney located in your state.

Many states have divorce-related automatic restraining orders that prohibit either spouse from selling or mortgaging the marital home during the divorce. Even if the property is only in your name, you may not be allowed to sell or encumber the home without your spouse's consent, or court approval.

It's best to consult an experienced family law attorney in your state so you can make sure you're protecting your legal rights, while respecting those of your spouse: if you violate your spouse's rights during a divorce, say by selling the family home without permission, a judge may order monetary sanctions (fines) or more severe penalties against you.

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