Who Has to Leave the House In a Divorce?
For a vast majority of couples, the marital home is their single largest purchase. It also becomes a bitter bone of contention when the marriage falls apart. Imagine having to find somewhere else to live in the middle of this devastating life event, on top of having to worry about other family members, such as children, that might be affected.
So what do you do while the divorce process is ongoing?
Should you stay, or should you go?
Is one partner more deserving of the other to stay in the home you once shared together?
In this article, we'll explore the options you have in figuring out asset division during a divorce, as well as the key factors that helps the courts decide who gets to keep the house after everything is said and done.
How Do You Figure Out Property Division During the Divorce Process?
Divvying up marital property in the event of a divorce is rarely cut and dried. Even if one spouse owned the family home prior to the marriage, that doesn't automatically mean they could throw the non owner spouse out into the curb once the divorce papers are served.
By Mutual Agreement
Ideally, you and your ex spouse could work things out amicably without involving the expense of attorneys and the hassles of a courtroom battle. Determining marital and separate property will be up to you, and since you're operating outside of court supervision, state laws need not apply.
Both of you decide who gets to keep the house, typically the primary caregiver in the case of minor children, while the other spouse moves out in the meantime until the divorce is finalized. However, there's nothing stopping both of you from living in the family home, as long as you're both able to work it out and set boundaries.
By Court Order
On the flip side, if a civil negotiation between the spouses isn't forthcoming, there would be no choice but to get the local court involved. This means a judge will have the final say on who gets to live in the house after the divorce.
Factors Considered in Deciding Who Gets the House During a Divorce
Whose Name Appears on the Title Deed?
If you own the house prior to the marriage, and you did not add your spouse's name to the title deed, community property rules treat it as a separate property. However, this separate property can be converted into a marital property if the other spouse can prove that they contributed to the upkeep and improvement of the home, financially or otherwise.
What State Laws Are Applicable?
You Live in a Community Property State
In community property states, all income, properties, and debts incurred during a marriage are shared equally by both spouses. Even if only one spouse is working, per se, and the other stays behind as a homemaker, both of them contributed to the success of the marriage, and therefore, each is entitled to half of all assets and liabilities.
You Live in a Equitable Distribution State
On the other hand, equitable distribution states aim to achieve fairness in asset division. Do note that fair doesn't necessarily mean equal in this sense. The court takes into account several factors, namely: income, age, health, ability to secure employment, and the earning power of the former couple in finalizing the divorce settlement.
Who Is the Primary Caregiver?
The custodial parent is usually given preference when the courts ultimately decide who gets to stay in the house. However, you may feel that a change of environment would be better for your children; you're free to move out too if that's the case.
Who Stayed in the House During the Separation?
When disagreements escalate to the point that one spouse is pushed to the limit, they may leave and wait for things to cool off before coming back.
Unfortunately, leaving in the heat of the moment can backfire and be misconstrued as abandonment and the judge may not look at it favorably during the divorce proceedings.
Is One Partner Financially Dependent on the Other?
If you're financially dependent on your spouse but the relationship is already falling apart, your worries about the future may lead you to put off seeking a divorce.
Don't worry, you won't find yourself out in the streets with only the clothes on your back. The courts will give you sufficient time to find a job while allowing you to stay in the house for the meantime. In cases like this, alimony or spousal support is part of the settlement after the divorce.
Is Domestic Violence Involved?
In cases of domestic violence, a restraining order can be taken out against the other spouse. The safety of the children is considered paramount, and your attorney can file this for you.
The court will only give victims access to the house in the midst of the divorce process, and when this protective order is violated, the abusive spouse can be arrested.
Options for Dividing the Marital Property in a Divorce
Once the divorce process is finalized, the question of asset division must still be answered.
There are 4 ways both you and your ex can go about this:
Option #1: One Spouse Buys Out the Other
If you're the higher earning spouse, and you're determined to stay in the house, you can consider buying out your spouse's contribution to the home.
First things first, you need to find out how much your house is worth. Your divorce attorney may be able to recommend a real estate appraiser who can determine the fair market value of your house. Once you have it, you can calculate the equity and negotiate the buyout amount.
Before going down this route, evaluate your finances carefully. You don't want to bite off more than you can chew and keep the house only for it to get foreclosed. You must also have enough money that is considered separate property before you can proceed with the buyout.
As for the loan, if you can afford to take over it, you will have to refinance the house and transfer the loan to just your name. Keep in mind that before, you and your spouse split the mortgage payments, but now it will be your sole responsibility.
On top of that, you'll also be paying for the home maintenance and upkeep. You'd also likely pay child support and spousal maintenance depending on how the judge rules once the divorce case is concluded, so be sure to factor these in.
Option #2: Both Spouses Divide Large Assets among Themselves
This is applicable for couples with a large number of jointly owned assets.
For example, while the marital home goes to one spouse, the other spouse gets the artwork collection, a boa1xt and other assets that are equal in value to the home.
If an agreement is reached amicably, this could save time for both spouses since there would be no need to wait for the assets to be liquidated before dividing the proceeds.
A drawback of this is the necessity to have everything appraised, and that can get messy, especially if the divorcing couple each get a separate appraiser. There may be disputes regarding the perceived value of said assets, and a judge may have to rule whether the division is fair to all parties.
Option #3: Divorcing Couple Co-owns the Home
When minor children are involved, the court allows one parent who has child custody to stay in the house with the kids. This will provide stability, especially in their formative years, allowing them to stay in the same school and not be apart from their friends.
Another advantage of co-owning the house is selling at a later date--typically, once your youngest turns 18--to reap the benefits of property appreciation.
But there's a catch to co-owning the family residence with your ex: since the marital property belongs to the both of you, you remain financially tethered to one another. You and your former spouse must continue paying the monthly mortgage payments, or else it could negatively impact your credit scores.
Another thing, the spouse who is no longer living in the property will be stuck paying the mortgage of two households. To avoid disputes and headaches down the line, have a written and signed agreement regarding how you will manage the mortgage and financial upkeep of the house.
Option #4: Sell the House and Divide the Proceeds
Possibly the simplest solution to this complicated problem: liquidate the house and then divide the proceeds among yourselves.
With so many memories of the marriage attached to the home you shared together, selling it after the divorce can also help you move on and heal faster.
The downside? The selling process takes time.
When selling on the open market, it can take 65 days before you find a buyer. Selling the traditional way also requires you to deal with inspections, repairs, and upgrades which might be too much on your plate at the moment. Taking such a long time to sell may also force you to deal with your ex spouse more than you should--something that is very hard to do especially if the divorce is acrimonious due to marital misconduct.
Alternatively, you can find a cash buyer for your house. A cash buyer, such as a real estate investor or house flipper, can work on your timeline and can close in as little as a week! What's more, you get to skip inspections, appraisals, and negotiations.
Once everything is said and done, you walk away with cash for a fresh start.
Closing Thoughts: Who Gets the House During a Divorce?
There's no straight answer to the question of who gets the house after a divorce. Even if the court rules in your favor, you may not want to stay in the house due to the pain of memories attached to it.
Ultimately, if you and your former spouse are both in agreement that selling the house is for the best, House Buyer Network is here to help you.
We can link you with a local cash buyer familiar with the real estate market in your area, so you get a fair, honest offer in exchange for your home, without having to pay a dime in realtor commissions! Closing costs are on us, so you get everything that's on offer, without worrying about hidden fees!
Just fill in your property address, email, and phone number in the form below to receive our no obligation cash offer within 24 hours!
If you'd like to know more about our process and how we can further help you sell your home, just call us at (855) 835-2544!