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Who Keeps The House in a Divorce?

who gets the house in a divorce

Divorce is an ugly reality facing many couples today. Unfortunately, one of the prevailing issues is the separation of assets, including the marital home. Most times, it is the most valuable resource shared by both individuals. Popular culture implies the answer is black and white, but it may not always be the case. It depends on several factors, like if the home is a marital asset or separate property. State laws and the context of the divorce also govern the decision on who will get the house. In ideal scenarios, when a couple divorces amicably, they also decide on who will get the house. They can agree on the property separation, thereby creating an uncontested settlement. This tends to be less stressful for both individuals along with their children. However, if the couple cannot agree, this will become a civil case that will go to trial. Before reaching a verdict, the courts will rely on state laws and other factors.

Separate or Marital Property

divorce property division

Each spouse is entitled to keep the property they entered the marriage with as it falls under separate property. The complication arises if both came with negligible assets and proceeded to build wealth together. It is considered marital property as it was secured during the marriage. Marital property, by law, has to be divided up during divorce proceedings. If a spouse owned a house before the wedding and did not change the title or get a joint mortgage, it would remain their property after the dissolution. They also have to prove that the spouse did not contribute revenue for maintenance or have equity in the house.

State Laws

The state's laws govern how divorcees separate property via a court of law. Some states, like California, are community property oriented, meaning the judges must ensure the marital or communal property is divided evenly. If the home were acquired after the marriage certificate was issued and is currently valued at $300,000, the judge would award the home to the husband or wife on the condition that they pay their spouse $150,000. That is also referred to as a buyout.

Alternatively, the couple may be ordered to sell the house and split the revenue. It is usually an unfavorable option because of the emotional stress and memories associated with the home. In this case, the home presents a significant burden, financially speaking. That is also when there is not enough marital property for one spouse to buy out the other so they would retain the house. There are different ways the judge may decide the issue of who gets the home.

One may also get more detailed information by contacting an experienced lawyer in the state. Most states have divorce-related automatic restraining orders forbidding spouses from selling or mortgaging the marital home. Even if the property is in one spouse's name, they may not be allowed to sell the house without the person's consent or approval from the court. It would be advisable then to contact legal counsel to deliberate the possibilities of what can be done independently or not. If one of them violates the spouse's rights by selling the home without permission, the judge could issue significant penalties to the offender.

Some states also follow equitable distribution policies when it comes to divorce. The marital property could be divided relatively, but that does not mean it would be an equal division. One may be given the house while their partner gets the rest of the property, which is technically lower in value. That is determined by the level of investment among the spouses and their income disparity.

The Spouse That Wants The House

who gets the house in a divorce with children

It may seem petty, but it is relevant in some divorce cases. It may only be one of the spouses that want the home. Should that be the case, deciding who gets it would be straightforward. It is also provided that the other individual would claim other assets, so there is a relatively equitable split. Unfortunately, if both spouses have a claim on the home, there would be other factors the court considers. That is, if both or one spouse can afford the maintenance of the house on their own. It is also about which spouse is catering for the home expenses during the divorce.


The custody and visitation schedule is usually a significant factor when deciding who will get the house. Judges may side with the parent with custody of the children because they get more time with them. Considering the children require a consistent residence, the parent that has them most of the time would be awarded the home. If both spouses share equal time with the children, it is trickier for the judge to decide the spouse to give the residence. They rely on state law as well as the aforementioned discussed factors.

Spouses That Moved Out Of The House During Divorce

Typically, if an individual moved out of the house during the separation or divorce, that does not mean they have legally relinquished their rights to the house. The court may consider the reasons for moving from the house. If the courts ordered it, it might affect the case results. The spouse would not be penalized or kept from their property if the move was voluntary. However, moving out before consulting legal counsel during a divorce is still not a good idea, especially if there will be a contest on household property.

There Are Varying Outcomes for the House in a Divorce

The rights to the house during a divorce depend on various factors, such as state law, income, child custody, and ownership before or after the wedding. Though even if one entered the marriage with a home and they lived in a state with community property laws, they would not be able to sell it without spousal or court approval. The courts decide which spouse gets the house and if it will be sold to divide the resources. Having custody of the children or a higher income is favorable in the eyes of the courts.