Many divorces turn contentious, and after issues regarding the children, the question of who gets the house is almost always one of the hardest fought battles. While a house is in many ways an emotional investment, the law actually makes it pretty straightforward how the question of who gets the house should be decided. Here's what the judge will consider.
If Children Are Involved
If a couple had children together, the judge will focus on the children and not the parents. The house will almost always be granted to the parent who is awarded primary custody.
The idea is that keeping the children in the house will cause as little disruption to their lives as possible and help them better cope with the divorce. If either parent seeks alternative housing arrangements, they would need to show why that is more in the children's best interests than it is for them to stay in the house.
If the House Was Bought Before Marriage
If one spouse already owned the house before marriage, it may not even be considered in the divorce. Things that spouses acquired before the marriage are generally considered to be theirs for life.
The only questions arise when the other spouse starts putting money towards the mortgage, repairs, and upgrades. In these situations, the answer will usually be that the spouse who bought the house keeps it, but the other spouse will be compensated through a larger share of other property.
If the House Was Bought Together
If the house was bought together, it is considered as part of the couple's community property to be divided equally between them.
If one spouse wants the house and the other does not, the spouse who wants it will assume the rest of the mortgage and the other spouse will receive other property equal to the equity in the home. If the remaining community property is worth less than the equity in the home, the spouse taking the house will need to enter into a payment plan to compensate the other spouse for the difference.
If neither spouse wants the house, it will be sold for fair market value and they will divide the proceeds.
If both spouses want the house and there are no children, the judge will usually look for a compelling reason such as it being closer to one of their jobs. Otherwise, the spouses will typically be told to either figure it out on their own in mediation or the judge will order the house to be sold.
To learn more about property division during a divorce, contact a local family law attorney like Lisa J Kleinberg today.Share