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Who gets the house in a divorce?

State laws and individual circumstances vary, so if you are wondering who most commonly gets the house in a divorce, you may want to talk to a lawyer. But most states follow one of two methods to divide property in a divorce:

  • Community property division.
  • Equitable distribution of property.

If you live in a community property state that divides all property 50/50 between divorcing spouses, half the value of the home will need to be given to the spouse who does not remain in the home. If you live in a state that has equitable distribution of property, a family judge will decide on a fair allocation of the house and other assets, which may not necessarily be equal.

Can I stay in my home with my kids?

Divorce can be a turbulent time for children. Children rely on the stability of their home to keep them grounded. Unfortunately, whether a home can be kept depends largely on the finances of the individual spouses.

Many judges in states with equitable property distribution take the needs of children into account when dividing property, including the family home. If a divorce is amicable, the splitting couple can make their own agreement. Under a Divorce Settlement Agreement, one spouse may remain in the home with the children as their primary residence for a certain number of years, possibly in exchange for a reduction in spousal support. 

How can I split home equity with my ex?

If you want to sell or remain in your home, there are ways to split the equity with your ex in a Divorce Settlement Agreement. You can, for instance, refinance the mortgage and buy out your ex-spouse. This is known as a “cash-out” refinance and it could affect your mortgage rate. You may also have to re-qualify for the remaining mortgage on your own.

Alternatively, you may sell the house with both spouses moving out and taking their share of the proceeds. There are two ways you can do this. First, proceed jointly with the sale, which will require the divorcing couple to agree on a real estate agent, showing schedule, sale terms, and sale price. The second way is for one spouse to take charge of the sale, but if it takes longer than expected, that person may be solely responsible for upkeep costs until the sale goes through.

Finally, you could retain joint ownership and delay the sale of the house until your children are grown or reach a certain age. If you go this route, you could divide mortgage payments with the resident spouse responsible for taxes, upkeep, and utilities. Subsequent major expenses could count for or against one spouse’s share when the home eventually sells.

Can I offset the value of my home to buy out my ex-spouse?

If you and your spouse agree, and there are other assets to offset the value of your home, then this is usually possible. In an equitable distribution state, the judge has discretion to divide marital property as fairly as possible after reviewing each spouse’s Financial Affidavit and other factors, such as custody arrangements.

Equitable, however, does not mean equal. If one spouse has more needs or a lower earning capacity, the judge may decide that this spouse will get the home. The other spouse may be awarded assets, like retirement savings accounts, to offset the value of the home. Whether a judge can give one spouse the home also depends on how the property is titled, and whether that person can afford to keep the home in the long term either on their own or with the help of child or spousal support.

Can I be forced to sell my house in a divorce?

The short answer is yes. A court can force the sale of a house during a divorce. In most situations, however, a family home is sold because neither party can afford to keep it on their own, or there are no other options to buy-out or divide the equity.

If you have more questions about dividing your home and other property in a divorce, reach out to a Rocket Lawyer network attorney for affordable legal advice.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.


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