One of the primary issues that must be addressed when ending a marriage is the division of the parties’ assets, including the family home, if they own it. Each spouse may want the house for different reasons, including keeping their children in the same place and having it as a personal asset.
Unfortunately, there’s no universal answer to the question of who gets the house in a divorce. It differs from case to case depending on the specific circumstances involved. That said, there are certain things to be aware of that may help you determine whether and to what extent you may be entitled to all or a portion of the family home.
This article explains what happens when you divorce and you own a home together with your spouse. We go over property division laws in community property states compared to equitable distribution states. We also discuss how children may affect who gets the house.
Community property vs equitable distribution
There are multiple factors to take into account when considering who might get the house in a divorce. One of the most important is the applicable law regarding marital property division in your jurisdiction.
The two primary approaches to property division for a married couple are:
- Community property
- Equitable distribution
Division of assets in a community property state
In community property states, there’s a general presumption that all property acquired during the marriage is considered “community” property that’s subject to equal division between the parties in the event of a divorce. This is true even when certain property is acquired by one spouse, rather than by both spouses jointly.
In effect, this means that so long as the home was acquired during the marriage, each party is typically entitled to a 50-percent interest. Importantly, this extends to all assets acquired during the marriage, such as vehicles, bank accounts and retirement accounts, as well as liabilities and debts incurred.
Currently, the following states follow community property rules:
- Arizona
- California
- Idaho
- Louisiana
- New Mexico
- Nevada
- Texas
- Washington
- Wisconsin
Alaska, South Dakota and Tennessee also have optional community property systems. This type of system allows couples to agree to treat their property as community property, if they wish to.
Note, however, that not all community property states follow precisely the same rules regarding property division. Check the laws or consult with an attorney in your state before proceeding.
Division of assets in an equitable distribution state
The remaining states are equitable distribution states, where property is divided subject to principles of equity and fairness. To divide the marital home in an equitable distribution jurisdiction, the court may consider factors including the:
- Length of the marriage
- Income and future earning capacity of each spouse
- Contributions to the marriage, both financial and non-financial, by each spouse
- Standards of living of the parties during the marriage
- Existence of any custody arrangements regarding shared children
- Value of the property
- Existence of any prenuptial or postnuptial agreements governing who gets the house in a divorce
In many cases, a house acquired during the marriage will be divided equally in an equitable distribution state. However, the court’s primary objective is to determine the most fair and “equitable” outcome for all parties involved. Thus, equitable doesn’t always mean equal.
How courts divide the marital home
There are several common methods courts may use to divide the marital home, including:
- Ordering the parties to sell the home and divide the proceeds
- Awarding the home to one party and awarding an equivalent asset (such as a retirement account) to the other party
- Awarding the home to one party and requiring them to refinance it to buy out the other party’s interest
The court typically takes the parties’ individual needs and desires into account in deciding which approach to take. The parties may also reach an agreement on how to divide the home.
Who gets the house in a divorce with children
Division of the marital home may be more complicated if the spouses share children.
Your jurisdiction’s general laws (community property or equitable distribution) still apply. Additionally, the court may also consider the children’s needs in dividing the marital home.
In many cases, courts try to make a decision that allows the children to stay in the home. This means that if the spouses can’t reach an agreement about who should get the house, the parent awarded primary physical custody or residency of the children is more likely to receive the home. The court may then award the other parent a larger portion of other assets so that each party obtains as close to an equal 50-percent share of the total marital property as possible.
Still, each case is unique. An experienced family law attorney in your state can provide more guidance based on your local laws and the specific circumstances of your divorce.
When to speak with an attorney
No part of a divorce is easy, and dividing your home and other marital property can be a particularly heated issue. You don’t have to hire an attorney, but having them help with property division (and any other aspect of your divorce) may be an asset. An experienced family law attorney in your state will understand the applicable laws and know how to proceed to best protect your rights and interests.
Sofie is a writer. She lives in Brooklyn.
