3 FAQs about who gets the house after divorce

 Posted on February 01, 2021 in Property Division

Determining who keeps the family home after divorce is often a financially, legally and emotionally complex process, especially when a couple shares young children.

During an uncontested divorce, spouses may be able to negotiate an agreement. However, if spouses cannot agree on ownership, the court treats the home as it does other types of assets that may be subject to equitable distribution under the law.

1. Is the family home marital property?

With the exception of personal gifts and inheritances, nearly all assets that either spouse acquires during marriage automatically become shared marital property subject to court division upon divorce. This includes the family home, even if only one party’s name is on the deed.

2. How might the court handle award of the home?

Rather than dividing each marital asset equally, the court distributes property according to what it deems fair to the needs of each party and shared children. For example, a judge may award the home to the parent that has primary childcare responsibilities but award a greater portion of another type of asset to the other spouse.

3. Why might a spouse consider surrendering the home?

When it comes to dividing marital property, it is important to prioritize assets. If a spouse receives the home in a settlement, he or she may have to give up other property of comparable value to do so.

On the other hand, if a spouse concedes the home, he or she may be able to use this as leverage to receive a greater portion of other marital assets.