Family Law

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

By Kristina Otterstrom, Attorney
Find out when you might need to say goodbye to your marital home.

Who Gets the House?

The “marital home” is the house you share with your current spouse and family. It can be the same house you lived in from before your marriage or a house you and your spouse purchased after the wedding. Who gets the house depends on where you live and if the house is joint property.

State law governs property ownership and asset division during a divorce. Your state will follow either community or equitable distribution property laws. For example, in a community property state, you and your spouse will split divorce assets in half. This could mean that you and your spouse are both entitled to 50% of the equity in the marital home. In an equitable distribution state, a judge will divide your property fairly—this doesn’t necessarily mean evenly or equally.

The date you acquired the house is an important piece of information in a divorce. Both in community and equitable distribution states, a judge can’t award your separate property to your spouse. Property is usually designated as separate if it was a gift or inheritance or it was acquired before the marriage. Generally, spouses keep their own separate property in a divorce.

Can I Get the House Even If It’s Not My Separate Property?

A judge can award the marital home to one spouse as part of property distribution in your divorce. This assumes that the house qualifies as “marital” or “community” property and not one spouse’s separate property.

A court will look at several factors to decide who gets the house. These factors may include, but aren’t limited to the following:

  • each spouse’s financial circumstances
  • each spouse’s contributions to the marital home
  • each spouse’s age and physical and mental health
  • which parent has custody of the couple’s minor children
  • source of funds for the marital home
  • marital misconduct of either spouse
  • each spouse’s employability and job skills, and
  • the value of the marital home.

You and your spouse can also reach your own divorce agreement dividing up marital assets, including the family home. However, if you leave matters up to a judge, the parent with custody of minor children will probably get to stay in the marital home. This is because a home is seen as a source of stability for children embroiled in the midst of their parents’ divorce. Letting children stay in their childhood home also allows them to maintain the same friendships and attend the same school. One exception may be if neither spouse can afford to keep the home. In that case, a court may come up with a different solution.

Dividing Equity in the Marital Home

In most divorces, the marital home is a couple’s biggest asset. It’s also the center of family life and often serves as an anchor for families with minor children. If a judge determines that the marital home is one spouse’s separate property, the solution is simple: the spouse who owns it, gets it. It’s a lot more complicated when the family home is a marital asset.

Distributive Shares

A judge can award both spouses a share in the marital home. This means each spouse has rights to the value of the marital home. There are several ways to grant spouses their share of the marital home, such as:

  • requiring one spouse to pay for or “buy out” the other spouse’s share
  • awarding one spouse exclusive possession of the home for a limited period of time, and requiring the couple to sell the house by a certain date after that
  • requiring the couple to sell the house immediately and divide the proceeds as directed by the court, or
  • offsetting the value of the home by awarding additional marital assets to the other spouse.

Deferred Distribution

One way a court can divide a marital residence is by distributing the equity in your house on a future date, called a “deferred distribution.” For example, a judge can award you the marital home to live in until your youngest child turns 18, at which point the house must be sold. Deferred distributions are also common in cases where the housing market is soft and divorcing couples want to hold on to their home until the market picks up. As part of a deferred distribution award, a court will usually require one or both spouses to cover maintenance fees, taxes, mortgage payments, and home owner's insurance.

How Do I Prepare to Sell?

If you’re required to sell the marital home as part of your divorce, it’s not as scary as it sounds. In most cases, a judge will assign a certain real estate agent or you and your spouse can pick your own. Most couples are on the same page when it comes to selling a home because both spouses want to maximize their profits.

A listing agent can recommend any updates or strategies for selling. A divorce order will typically require couples to split the costs of updates to the residence. Once a home is under contract and sold, any proceeds must be split in accordance with the divorce order.

Questions for Your Attorney

  • Most of our net worth is tied up in our house, and I want to keep the home. Can I agree to take less alimony from my spouse to make things fair?
  • My spouse wants the house and I’m okay with it, but how do I get my name off the mortgage? I don’t trust that my spouse will make payments on time and I don’t want my credit affected.
  • I agreed to let my spouse stay in the house until the kids are older and we can sell the home then. However, I want to make sure my spouse pays for improvements and maintenance and keeps the home in good condition. How can I do that?

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