Which Spouse Gets the House in the Divorce?

When a married couple decides to end their marriage, there is usually quite a bit of controversy over dividing family property, which is often the most valuable asset. Except for a financial aspect, emotional attachment to the home and practical considerations (when there are children involved) also come to play.

There are many things to be determined when figuring out who will get the house or whether it should be sold to a third party, including: where the children will live after divorce, whether wife or husband can afford to keep the house, etc.

Community and Separate Property

The first step in determining who will get the home is to figure out who is the owner. It`s not as simple as it may seem. Before going any further, we need to specify the differences between community and separate property. States` legislature differs in some of the details, but, generally speaking, separate property includes:

  • any property owned by either wife or husband prior to the marriage
  • an inheritance or gift got by either spouse before or after the marriage
  • payment received for pain and suffering portion in a personal injury judgment

All other property acquired during the marriage is considered community or marital property, regardless of whose name it is in.

Who Gets the House?

The spouse, which purchased the house prior to the marriage, gets it after divorce. If the house is community property, then there are several options available, according to the divorce judgment. The couple could sell their homes and divide the profits from the sale. This is the only reasonable option if neither husband nor wife can afford to own the home alone.

Another option is for either husband or wife to buy out the home taking full ownership for it. When the couple has minor children in common, the court may take a “deferred sale of home” order temporarily delaying sale of the home. In this case, both spouses continue to be owners for a specified period, giving a custodial parent exclusive use and possession of the home during this time. This order is taken to minimize the impact of the divorce on the welfare of the children. If one of the spouses violates the other`s rights during a divorce, say by selling home without permission, he may be entitled to monetary fines or more severe penalties.

The home is probably the biggest problem of the couple getting divorced. As it can be an extremely complicated process, a competent family law attorney can help to protect your legal rights.

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