Who Gets the House in a Divorce?

First comes love, and then the money squabbles. Let's face it. Divorces are a complicated affair. A divorce typically means you're leaving a partner you had once hoped to spend the rest of your life with. Despite the tumultuous emotions involved, property and assets shared in the marriage must be divided before the divorce is complete. Your family residence and almost everything you both had once jointly owned — from the mundane items to the aspects of your life that you have forged a life-long attachment or affinity towards. Think home, assets, and even child custody!

Unfortunately, there's no clear-cut answer on who 'gets' the house after a divorce. Typically, this is one of the largest assets shared in marriage, and where there's a dispute, the family court will usually examine the arguments of both parties to determine who has the better claim.

Beneath the bad blood and sheer animosity of the "who gets what" tussles, there is usually a host of concerns that could arise from who gets the house, which judges will take into careful consideration before deciding. Each of the many factors to consider will be addressed in this post, and some of them might help you to understand how to keep the house in a divorce.

Since both partners cannot fully retain joint custody of a house or apartment, the court will decide what happens to the house based on preexisting facts as outlined in family law. Three salient factors you may want to consider include:

More often than not, these factors are the focal points a presiding judge will consider when determining in a divorce who gets the house.

Couples pursuing divorce are typically presented with three main options to choose from when deciding what to do with their home after a divorce. These include:

Many lawyers will agree that selling the house is one of the best ways to ensure a clean split without any potential problems. Once the house has been appraised, both partners will be able to pay off the existing mortgage and any other fees/taxes that may have accrued and still have some amount to share between themselves. For most couples, this amount can help them to start their new lives as a single person.

Not all couples will be able to agree with Option 1. A home holds many memories — especially when children are involved. If you're in this position, you may be able to keep the house yourself by paying off the outstanding mortgage debt and buying out your partner's equity. You should note that with this option, you'll need to qualify for a new mortgage based on your income alone. Speak to your financial adviser before you make any commitments.

Sometimes, divorcing couples may not be able to refinance a new mortgage or buy out the other party to keep ownership of the house (as required by Option 2). In such a case, they may choose to continue their joint ownership of the said property until they decide to sell the house or one party has enough to buy out the other.

Couples can agree amongst themselves to decide on who gets the house after the divorce. For example, the couple may decide to have the house go to the primary caregiver of the children in consideration of other assets or to ensure that the children continue to have a stable home life.

However, where the couple is at odds over how to divide the house, the court will step in to decide who gets the house in the divorce based on principles of equitable distribution.

Since you and your partner purchased the house before the marriage broke down, you are jointly responsible for all expenses incurred. The same applies to benefits, as you both have a legal right to the property. So, who keeps the house in a divorce?

As mentioned earlier, who gets the house will depend on both spouses' agreement in a divorce. Where there's no tangible agreement, the court will decide based on peculiar factors associated with the case.

In some cases, the court may decide to keep the house in possession of the parent with custody of the children. In other cases, the house will remain with the partner with the necessary income to keep up with mortgage payments. On rare occasions, the courts may award ownership of the house to one partner as a punitive measure to the other.

In this scenario, the general rule is that any house/assets/property purchased by a person before they get married will remain their "separate" property.

"Separate" in this context means that the assets in question will remain under the sole ownership of such a person even after they get married. Consequently, where one spouse purchased the family home before the marriage, the general position of the law is that the family home belongs to them alone.

Where the house in dispute is the separate property of one spouse, the court will most likely grant it to that spouse during the divorce.

If you are not the spouse who purchased the home prior to the marriage, you may be able to get some financial compensation or equity from the house if the court has determined that the house has been converted to a marital asset. 

For instance, if you can prove that you made financial contributions to mortgage payments, home improvements, or paid property taxes on the house or that the house was a source of joint income during the marriage, the house will be subject to equitable distribution.

In this case, your ex-spouse will be required to buy out your portion of the equity to retain sole ownership of the house.

The same rules apply no matter who was the original owner of the home (husband or wife). Once it's clear that the spouse purchased the house before the marriage, the court will seek to retain it as an asset exclusively belonging to them unless contributions to the management and upkeep of the home were made by the other spouse.

To prove that the house is separate property and should not be considered a joint asset, the first consideration, and possibly the most important, is establishing that you bought the house before the marriage with your partner commenced.

The burden of proof rests on the party that makes this claim, so you will have to tender evidence to prove the following beyond a reasonable doubt:

Tendering this sort of evidence means you will need a comprehensive paper trail of all financial documents (for instance, the real estate purchase agreement) relating to the house. Good record-keeping is key to proving your case and finding success in court.

In most cases involving children, the custodial parent will get the right to retain possession of the house after a divorce. Why so? The courts recognize the need for the lives of the children involved in a divorce to remain stable even after their parents have split up.

In this case, possession does not equal ownership, and you cannot divide property. For example, the custodial parent may live in the house until the youngest child becomes 18, even if the property is not in their name. Afterward, the estranged couple can split the proceeds or buy out the other party's share. An experienced family law attorney will help determine the best steps in line with your interests.

A marital settlement agreement is a less-contentious option for deciding who gets what assets after a marriage breakdown. Here, the parties agree on what happens to marital assets after the divorce, including who gets the house. However, when both parties cannot agree, the court will decide for them based on the following factors:

The home is usually the most significant asset in a marriage, not just for its monetary value but also for sentimental value — the good memories once shared, the sense of attachment, and all the emotions in between. All these make the home one of the most keenly contested assets in the dissolution of any marriage.

Both parties are entitled to remain in the house during divorce proceedings, but typically, one person moves out while the other spouse remains in the home. This entitlement will be binding until the court decides who gets to keep the house.

However, a party may lose the right to stay in the house during divorce proceedings when the court deems that it is enough to cause a significant level of emotional stress for the other party. For example, the court will invoke an injunction to oust an abusive partner from the home during the period of time that the court decides on what to do with the house.

Choosing to sell your home after splitting up with your partner can be a great idea — in fact, many divorce attorneys will recommend this. Selling the house means you both get equal proceeds from the sale and be clear of any joint assets as soon as possible. However, you will need to decide whether to sell the home before beginning the divorce process or after the divorce is complete. Let's explore both scenarios in detail below.

The greatest benefit of selling the house before a divorce is that it hastens the divorce process considerably. It often ensures a clean split once and for all — neither party will have to deal with the other once the divorce is finalized.

However, choosing to sell your house before the divorce requires a great deal of emotional maturity and cooperation, which may not always be possible during the divorce process. What's more, if you are in a rush to tidy things up before pursuing the divorce, you may undersell your home.

Alternatively, a couple can decide to sell their house after all the divorce proceedings have been completed. This gives ample time to ensure that you get the best possible valuation for your home and, in some cases, allows for the property to increase in value.

Communication between you and your former partner may also be better at this time since emotions have had some time to run their course, allowing for the best outcomes for both partners.

At the same time, keeping the house to sell after the divorce may bring in some extra financial obligations in terms of paying the mortgage and taxes. You will also need to be in constant communication with your partner, which may not be a good idea if the marriage ends badly.

Although uncommon, you can choose to buy part of your marital estate from your spouse. This decision may be made based solely on your financial interests, as it's not always possible for a partner to refinance a new mortgage on their income. Before you make this decision, make sure to talk through your divorce with your divorce attorney.

There's no doubt that determining what happens to the house during a divorce is one of the most complex aspects of the dissolution of a marriage. There's no streamlined answer to determine who gets what—each case is deemed separately by the court based on the facts at hand. Choose an experienced divorce attorney or law firm with a sterling track record to ensure that your interests are protected.

The understanding of the abovementioned factors will help you and your spouse to ensure you both understand who should get a house in a divorce. For sure, sometimes there might be more complex cases not described in this article, so you must have professional assistance as soon as possible.

Got a couple more questions? Look for skilled divorce lawyers who will give you professional assistance with any question you might have related to a divorce.