Who Gets the House in a Divorce?

A divorce not only entails the sundering of a partnership like marriage but very often division of assets and possessions. And one of the most common to come at the center of conflict is the marital house. Usually because property is expensive and stands for psychological, material and financial security, each partner does his/her best to acquire the house. Under such circumstances the question who gets the house assumes huge importance, often requiring the intervention of the law.

Legal ownership

As far as legal ownership of the property of the property is concerned, a partner’s rights would depend on the basis on which the home is owned in the first place.  For instance if both names are on the title, each spouse has a right to the house and neither partner can be forced out by the other. However if only one partner’s for example the husband’s name appears on the title, the other in this case the wife, can still protect her right of occupation by registering a claim at the appropriate authority like the Land Registry. This protects her right to stay in the home, even if the husband sells it to a third party, until the court decides what's to happen to the property.

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Custody of kids

The most important factor which will decide as to which partner gets the house after a divorce is the presence of children from the marriage. Thus if and your spouse are divorcing and have children, the parent with the primary custody of the kids is most likely to get the house. In many states the process of granting divorce is a long one and by the time the children have settled down with the primary custodial parent in the house, the courts are reluctant to change the situation. This makes it even more common for the non-custodial spouse to move out of the house.

Sometimes such an arrangement is time-bound and the parent with the primary custody of kids gets to keep the house till the youngest child is nineteen or has been out on his/her own for a year. After this time limit, both spouses can agree to sell the house and divide the proceeds. Who gets what after the sale of the house will depend on various factors like who has been paying the mortgage, property tax, town council dues, occasional repairs and so on.

'Third-party' concerns

The presence of a 'third party' may also complicate matters regarding who gets the house after a divorce. If the spouse who initially gets the house remarries or has a significant other move into the house, the sale provisions that were going to go into effect when the youngest child moved out upon attaining adulthood will instead apply after the move-in or remarriage. This is because for some spouses, the house signifies marital asset and thus having a stranger move into the house for which he/she may have paid or is still paying is unacceptable.

However laws on who gets the house in a divorce can vary from one state to another. In some like New York for the time that the divorce is still pending, exclusive occupancy of the marital house by either partner is usually not allowed by the court except in cases when one spouse is a threat to the other’s safety or leaves voluntarily.

Selling the house

In case there are no children involved in your divorce, you and your spouse can also work together to decide what to do with the house. The easiest solution is to sell the house and divide the proceeds. However, a house is not only made of brick and mortar but is also associated with emotions like belonging, affection and a sense of security. Thus things become a little more complicated if one of you are more attached to the house than the other and do not wish to have it sold. In this case, you will, of course, need to have it appraised. You might each hire a real estate appraiser to value the house and then take the average of the two values. However If you both trust the same person, it will make more financial and practical sense to hire one person.

Divorcing spouses sparring over who gets to keep the house often come up something called the equity of a house. This refers to the difference between the assessed value of the house and the mortgage on the house. Subtracting the latter from the former gives the equity which in turn is often at the center of negotiations if one of warring spouses decides to keep the house and the other is entitled to his/her share of the marital asset. If you have a lot of equity tied up in your home, then selling it and buying two smaller properties may be the best solution. If you cannot afford to stay in the original home, then you may be looking to buy a smaller property or one in a cheaper area or to rent a place somewhere.

No matter who gets to keep the house, it makes sense to work out as many details as you can with your ex before one of you moves out. This is especially important if you have children from the marriage. Apart from discussing custody arrangements; and child and spousal support, it is also better to plan in advance how finances for each household will be handled. Make sure that each of you has a copy of relevant documents like deeds, bank and utility statements and insurance papers since all this will save you having to pay lawyers to retrieve these items at a later date. Inventory and organize your possessions, discuss your pets, and try your best to divide everything equitably. Above all, talk to your children together, listen to their fears and answer questions briefly but honestly. You may not be able to save them from the emotional and material trauma of divorce, but you will keep them from feeling abandoned and give them enough time to adjust to the new reality.