Family Law

Will the House Have to Be Sold if You're Divorcing?

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Dividing your property can be one of the most important, and often most disputed, issues in your divorce. For many couples, the marital home is one of the most valuable assets they own. The emotion and sentimentality attached to your home can make it all the harder to agree on what should be done with it in a divorce.

Know the basics on the law when it comes to dealing with your home in a divorce, and the options available for dividing this key asset.

Property Types, Property Distribution Law and Your House

Property ownership and division issues in a divorce are controlled by state law. There are two main types of laws on property division: Community property and equitable distribution.

The property, including a home that spouses acquire after marriage, is community property in a community property state and is marital property in an equitable distribution state. Generally each spouse is entitled to half the community property. In an equitable distribution state, property is divided between spouses in fair way (fair may not mean equal).

Spouses can also have separate or nonmarital property, which could include a home. Typically, spouses keep their separate property in a divorce.

What Will Happen to Your Marital Home?

The main residence you share with your spouse and family is called the marital home. It is often the most valuable asset acquired during your marriage. It's also the center of family life, and anchors many emotional ties, especially when your family includes minor children. So, it's to be expected that dividing this key asset may be difficult, emotional and contested.

There are several options for the disposition of your home in your divorce.

Deferred Distribution

court's order or your property settlement may provide that distributing the equity in your home is deferred to a future date. For example, at a set date or event, such as your youngest child turning 18 years old, the home will be sold and the proceeds will be split.

This option gives exclusive possession and use of the home to one spouse, often to allow children to stay in their "family home." There may be other conditions imposed, such as the non-occupying spouse paying some amount towards the mortgage, property taxes and upkeep.

Distributive Shares Awarded

Both spouses in a divorce may be awarded a distributive share in the marital home. Such an award can be granted by:

  • Giving each spouse a percentage of the spouses' total interest in the home
  • Awarding the home to one spouse on condition that he or she pays or buys out the other spouse's share
  • Awarding exclusive possession to one spouse for a certain period, after which the home is sold and the proceeds divided
  • Ordering the home sold with the proceeds divided as directed by the court or your property settlement

One Spouse Gets the House

The court or your property settlement may award the home to either spouse as part of the property distribution. This assumes that the house qualifies for distribution as ''marital'' or ''community'' property.

In deciding whether to award the home to one spouse, state laws generally direct courts to look at these factors:

  • Age and health of the spouses, and marriage length
  • Each spouse's contributions to the marriage
  • Each spouse's income and assets
  • Skills and employability of each spouse
  • Source of home or funds for home
  • Custody of minor children
  • Marital misconduct of the spouses

Solving property division issues is often one of the hardest parts of working through a divorce. Agreeing on a property settlement may come after rough negotiations with your spouse, or you may opt to take your chances and let the court decide property division issues in your case. Work with your divorce lawyer to understand your options, keep emotions in check, and nail down property division terms for your home you can live with.

Questions for Your Attorney

  • Most of our net worth is equity in our house, and I want to keep it. Can I agree to take less alimony from my ex-spouse to make things fair?
  • It's fine if my spouse wants to keep our house, but she'll have to refinance. What is a reasonable time to allow her to get a new mortgage?
  • I'll agree to let my spouse stay in the house, and we'll sell when the kids are older and split the proceeds. Can we provide terms on maintenance and improvements and who pays for those items?
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