Who Gets to Keep the House After a Divorce?

Divorces are never easy especially when it comes to the division of property. The marital home is particularly a hard nut to crack since both parties often desire to keep the home because of the stability, attachment to the neighborhood or house, kid’s school and/or perceived inability to afford comparable housing. But since keeping or selling a home after a divorce can be a significant, life-changing event, it’s essential for one to ensure that their reasons are sound and that keeping the house will be in their best financial interest.

If you are considering keeping the house, it is vital to do your homework to arm yourself with all the necessary information to make an informed decision. You may need to talk to a financial planner and a family lawyer to establish whether the home is a sound economic option now and in the long run.

But before we get into whether keeping the house is in your best interest, let’s look at who gets to keep their house after divorce:

Once a divorce is granted, the property will be divided equitably between you and your spouse. The court uses the Equitable Distribution law to determine who gets what. Equitable Distribution means fair (but not necessarily equal) division of property obtained during a marriage. It’s essential to understand the challenges surrounding the equitable distribution of property in a divorce:

  • The law is overly vague on how to settle property and debts issue
  • The equitable division has less to do with laws and more to do with negotiation and money
  • The property division cases are often too much involving and can also be challenging to try to resolve by yourself

There are two kinds of property for divorce purposes: there’s a property that both you and your spouse acquired during your marriage normally referred to as the marital property, and property that belonged to one spouse before the marriage (or was gifted to one spouse from someone else) commonly known as separate property. Often, the marital property is what’s subject to division.

How the court determines what’s equitable

The court looks at a range of aspects when deciding how to divide the marital property:

  • The property and income of each spouse at the time of the marriage
  • The duration of the marriage
  • The loss of pension and inheritance benefits
  • A spouse’s effort in the household – like a housewife sacrificing her career for the sake of her husband and vice versa
  • The health and age of both spouses

Whether there are kids involved, and if the custodial parent requires the house or any other marital property while the kids are growing up

Selling a home

The court may order the house to be sold. However, it may also postpone the sale if the custodial parent is in the house until the child graduates high school. The court may also rule that one spouse gets the house – this is often determined by all aspects that affect equitable distribution. To decide whether the home must be sold, the court considers the worth of the home, as well as any mortgages and other kinds of housing options.

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