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Who Gets the House in a Divorce?

7 min read
Unbundled Legal Help

by Unbundled Legal Help

While going through a divorce, you will undoubtedly experience many concerns and “what ifs.” One of the biggest questions spouses usually ask is “who gets the house in a divorce?”

There is no straight answer when determining who gets the house in a divorce. Many factors play a part, and it may be up to the spouses or a judge. In some cases, no one ends up with the marital home, it is sold, and spouses split the proceeds.

Consider the following information when determining whether you may be able to get the house in your divorce. Unbundled Legal Help can connect you today with an unbundled local divorce lawyer today in your area to help you.

Who Gets To Live in the House during the Divorce Process?

It depends. In many situations, one spouse voluntarily leaves the marital home because they wish to begin living separately. If this is the case, this arrangement usually remains throughout the divorce process.

If one spouse is taking primary custody of the kids during the divorce, this spouse will likely remain in the home during the process for the children’s sake.

If possible, spouses should decide who gets to remain in the house during the divorce. However, if this is not possible, a judge can intervene to determine who should live in the home.

How Is Property Distributed in a Divorce?

Generally, courts use two approaches for dividing property in a divorce: community property and equitable distribution.

In a community property state, the judge determines what property is marital property and what belongs to each spouse. If a property is marital property, the spouses divide it.

In an equitable distribution state, the judge divides marital property equitably, or fairly, but not necessarily equally. 

Division of property does not always mean physical division. In some cases, it may mean a percentage of the value of the property. 

Is the House Separate Property or Marital Property?

When making property determinations in a divorce, you must determine whether the property is separate property or marital property.

What Is Marital Property?

Simply put, marital property is property the spouses purchased during the marriage. It usually does not matter whether both spouses’ names are on the title. If it was purchased during the marriage, both spouses are entitled to it, or some percentage of it, during the divorce.

What Is Separate Property?

On the other hand, separate property is property owned by one of the spouses before the marriage. So, for example, if you bought a vehicle before you married, that vehicle would be considered separate property.

Can Separate Property Ever Become Marital Property?

Separate property can become marital property if a separate asset is mixed in with the marital property. For example, if one spouse uses money they had before the marriage to purchase marital property, that money might now be considered marital property. 

Will Fault in a Divorce Ever Determine Who Gets the Home?

Usually, fault doesn’t determine who gets the home. 

Divorces can be fault or no-fault. If your divorce is a fault divorce, a judge may deem it fair for the other spouse that was not at fault to remain in the home. Nonetheless, in most cases, fault does not play a significant role in deciding who gets the home.

What Determines Who Gets the House?

It is much easier when spouses can agree on who gets the marital home. If you cannot agree, the judge can intervene to determine who gets it.

The judge will consider whether you’re in a community property state or an equitable distribution state. Then, they will consider if the home is marital property or separate property.

Additionally, the judge can look at other factors:

  • Each spouse’s financial situation
  • What and how much each spouse contributes to the home
  • Which spouse has primary custody of the children
  • Whether one spouse is getting alimony
  • The earning potential of each spouse
  • The value of the home

Depending on circumstances, the judge may determine one spouse gets the home, or alternatively, they may decide it is best to sell the home and split the proceeds.

What Can Be Done with the House after a Divorce?

If the house is separate property, it is likely the spouse that bought the property will get it in the divorce, unless they negotiate it differently. In most cases, there will need to be a sale or transfer of the property.

Here are some possible options:

  • One spouse buys out the other spouse: In many cases, if one spouse wishes to remain in the home, they need to buy out the other spouse to get full rights to the property. The spouses can agree on this between themselves, or a judge may order the buyout.
  • The spouses sell the home: The spouses may decide to get rid of the home altogether, or a judge may find selling the best possible solution, considering the circumstances. If the spouses sell the marital home, they can then split the proceeds accordingly. 
  • The spouses remain as co-owners of the house. This frequently happens in one of two scenarios: either the spouses are comfortable with remaining co-owners of the home while only one spouse lives there, or they remain co-owners but neither lives in the home and they rent it out. 
  • The judge defers distribution: This occurs when a judge feels it is appropriate to put off selling the home and distributing the proceeds. In most of these cases, the divorce involves children, and the custodial parent is allowed to live in the home until the child(ren) turns 18. Thereafter, the home is sold, and proceeds distributed. 

Every divorce is unique. Fortunately, there are options to help decide what is best for your situation and all parties involved. 

How Is the Home Sold?

First, you and your spouse may decide to sell the home, or alternatively, the judge may order its sale.

In either scenario, you and your spouse can decide what real estate agent to go with. If you’re not able to agree, the judge can select one for you.

From there, your agent can help you and your spouse determine the best way to get maximum profits for your home. 

Once the home is sold, you and your spouse will split the proceeds depending on the judge’s order or a previous agreement. 

Determine Whether Staying in the Home Is Best

Going through a divorce can be an extremely emotional and turbulent time. These emotions often interfere with your better judgment.

In many instances, the spouse fighting for the marital home doesn’t even truly want it, they just want to prolong the battle. 

If you want to keep your home in the divorce, consider whether this is the best option for you. It may not be the most prudent decision to stay in the home for your kids’ sake, or from a financial standpoint. 

Nonetheless, if you determine keeping the home is right for you, it is beneficial to discuss your situation with a divorce lawyer. 

How Can a Divorce Lawyer Help Me Pursue the Marital Home?

Fighting for custody of your marital home may not be the easiest battle, but a qualified divorce lawyer has the skill to help you.

A divorce lawyer can guide you through the process, helping you decipher whether keeping the marital home is the right option and ways to get there. Have an open and frank discussion with your lawyer. Ask many questions:

  • Am I able to get the marital home?
  • What steps can I take to be able to keep the home?
  • How can I get the property in my name alone?

If you’d like to keep your marital home, it’s worth pursuing. A knowledgeable divorce lawyer can assist you.

Consider Getting Help from an Unbundled Lawyer 

Battling with your spouse over who gets the house can be overwhelming and stressful, but you don’t have to fight alone. A lawyer can help create a plan to help you achieve the best possible outcome.

Unfortunately, divorce lawyers can get expensive. An unbundled lawyer may be the answer.

When you hire an unbundled lawyer, you can expect to pay only for the services you actually need. If, for example, you’d like to handle your divorce on your own, but would like guidance on how to get your marital home, an unbundled lawyer can step in and help you with that issue.

Unbundled Legal Help can connect you with an unbundled divorce lawyer today in your area. We have access to an impressive network of attorneys ready to help you.

If you’re looking to get your marital home and need assistance, contact Unbundled Legal Help today.

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