Navigating Who Gets the House in a Divorce Can be Complicated

There is no simple answer to the question of which spouse gets the marital home in a divorce. However, it is a question that comes up repeatedly as I work with divorcing couples. The family home is one of those marital assets that has memories – both good and bad – and it is a topic fraught with tension when a couple divorces.

The reality is that people often find that it makes the most sense to sell the marital home and split the proceeds in some way. That said, in most cases, I typically see one or both spouses preferring to retain the home rather than selling it if possible.

Key Factors to Determine Who Should Keep the Marital Home

The fate of the family home in a divorce hinges on a variety of factors, including the specific marital property laws that can vary significantly from one state to another. Marital property laws dictate how assets, such as the house, acquired during the course of a marriage are divided upon divorce. Be sure to consult with a divorce attorney in your local geographic area for more information about your state's marital property laws.  

However, a key determinant in deciding who keeps the home is often how and when it was purchased, as this can significantly impact the classification of its equity as marital or separate property.

In many cases, the house is considered marital or community property if it was acquired during the marriage, regardless of whose name is on the title or who made the mortgage payments. This means that both spouses have a claim to their equity, which can be divided either as agreed upon by the parties or determined by the court.

However, if one spouse brought the house into the marriage as separate property or if one spouse purchased it with separate funds, then all or a portion of the equity might not be considered marital or community property, and the distribution may be adjusted accordingly.

The outcome can also depend on the financial contributions, both monetary and non-monetary, made by each spouse towards the property's purchase and upkeep. Consequently, navigating the complex terrain of marital property laws and the intricacies of the house's acquisition is crucial when determining who keeps the family home in a divorce.

Other Factors to Consider When Determining Who Should Keep the Marital Home

What divorce process are you utilizing?

What divorce process you are utilizing can have a significant impact on determining who keeps the house. Certain divorce processes, such as mediation and collaborative divorce, lend themselves to more creative solutions when it comes to defining marital property and determining the property division. In these alternative dispute resolution methods, couples have the opportunity to work together in a less adversarial manner, which can facilitate a more amicable and customized approach to asset distribution.

Spouses can explore options like co-ownership, delayed sales, or unique financial arrangements that may not be as easily achievable through a traditional litigation process. This flexibility allows the parties involved to prioritize their preferences and interests, making it more likely that the spouse who desires to keep the house can negotiate a solution that also works for the other spouse while considering the financial aspects and emotional considerations. Ultimately, the choice of divorce process can significantly influence the outcome regarding the family home and how it fits into the broader divorce settlement.

Who wants the house?

A significant consideration in the decision of who keeps the family home during a divorce often revolves around which spouse genuinely wants to retain ownership of the property. In many cases, only one spouse has a strong emotional attachment to the house, while the other spouse is more willing to part with it.

In such situations, the dispute often shifts from a battle over the home itself to a more intricate discussion about the financial aspects required to make that desire a reality. The spouse who wishes to keep the house may need to negotiate with the other for a fair distribution of assets, potential buyout arrangements, or even the assumption of the mortgage and related financial responsibilities. Thus, the issue often evolves into a matter of practicality and financial feasibility, with the ultimate goal being to reach a mutually acceptable resolution while taking into account the best interests of both parties involved in the divorce.

Why do you want to keep the house?

This question is not as straightforward as it may seem. Consider these questions.

• Is your desire to keep the house strictly emotional?
• Do you want to keep it because your soon-to-be-ex wants it, and you want it out of spite?
• Do you want to keep it so the children will have that one constant in their lives amid the divorce?
• Did you work hard on renovating the house yourself?
• Do you just not want to move?
• Do you want to keep the house for financial reasons?

There are many reasons for wanting to keep the house, and you may have more than one. Identifying your "why" can help you to evaluate other options that may serve the same need.

Can you afford to keep it?

I recognize that this can be a pretty tough wake-up call for many. Consider the mortgage, real estate taxes, insurance, utilities, the potential for significant repairs, and general upkeep costs. When considering the mortgage, be sure to take into account if the house will need to be refinanced and what the new mortgage payments will be. The last thing you want to do is start your newly single life in a house you cannot afford. Also, consider what you are giving up in other assets in your property settlement if you keep the house.

Is there a mortgage on the house?

Are your credit and your income enough to allow you to take on the mortgage on your own? I always encourage individuals to speak with at least a couple of mortgage lenders before deciding if they will keep the house so they know what their options are. Even if you and your soon-to-be-ex have agreed that you will keep the house and refinance into your name, it does not mean that the lender will be on the same page.

Are there children living in the marital home?

If there are children living in the home, it is very common for the primary caregiver to retain ownership of the family home. Families do this in order to disrupt the children's lives as little as possible. Keep in mind that if you really can't afford to stay in the house, this isn't a good idea. Regardless of the emotional attachment, you and your children will be much more comfortable in a home you can afford.

Will you have to give up other assets in order to keep the house?

As I help people work toward an equitable divorce settlement, I often see one party give up retirement assets in favor of keeping the house. Sometimes this makes sense, but a lot of time, I think people are too focused on their short-term needs and not fully considering the longer-term implications of their decisions.

The Psychological Aspect of Home Ownership Post-Divorce

While the financial and legal factors in deciding who gets the house are critical, the emotional connection to the marital home cannot be understated. For many, a house is more than just an asset; it's a repository of memories and a symbol of stability, especially for children amidst the upheaval of divorce. It's crucial to weigh the emotional benefits against the financial realities.

Consulting with a divorce coach or counselor during this time can provide clarity and support in making a decision that considers both the psychological well-being of the family and the financial health of each individual. This holistic approach ensures that the choice to keep or sell the home is not just financially sound but also emotionally sustainable.

Remember, there is no one right answer or a one-size-fits-all approach to deciding who will retain the house in a divorce. Taking the time to make a solid research-based decision is what will serve you best. It's also not a black-or-white question.

Additional Blog Posts Related to "Who Gets the House in a Divorce?" 

Divorce & Your Mortgage

Seven Steps to Consider if You Should Keep the House in Your Divorce

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