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Who Gets the House if We Get Divorced?

Symbol of the house is cut with a hacksaw. The concept of the division of property.

For most couples, the family home is their most significant investment and most valuable asset. So, when a couple divorces, the house becomes a great bone of contention. But the answer to the question “Who gets the house?” depends on the meaning of the word gets, since it implies two separate rights: ownership and possession.

Most homes are marital property, owned jointly by the spouses rather than by one spouse individually. Even when only one name appears on the deed, the other spouse has legal rights, including a claim to equity. Therefore, the home (as a whole or in part) is subject to equitable distribution. The court considers the fair market value of the home, the equity the couple has in it, the balance of the mortgage, any liens against the property, and other factors to decide how much the home is worth. Often, the home is worth more than 50 percent of the entire marital estate. Thus, transferring it outright to one of the spouses is impossible, because there are not enough assets to satisfy the other spouse.  If both spouses want to continue living in the house, litigation can be fierce.

If the couple has no children and no compelling reason to keep the home, they could liquidate the property and divide the proceeds of the sale. However, other factors such as the state of the local housing market and tax considerations can militate against this solution.

If there are children of the marriage, the home takes on added importance as a stabilizing element in the children’s lives. If the custodial parent wishes to remain in the home, courts generally come out against a sale and in favor of keeping the children in their familiar home. Custodial parents also get the nod ahead of noncustodial parents when both want to live in the home.

So, if conditions are not right to sell the home or the best interests of the children require they stay in the home, one parent will “get” the home, in the sense that he or she will have possession of it. He or she will live in it.

But possession is not ownership, so it’s possible both parties can maintain an ownership interest in the house while only one party lives there. This creates the potential for abuse of the nonoccupying spouse. In the worst-case scenario, he or she would have to pay for another residence while continuing to make mortgage payments, and having nearly all wealth tied up in the house.

However, the parties can negotiate, or the court can impose, financial terms fair to both parties, such as a second mortgage to release equity to the nonoccupying spouse or a date by which the occupying spouse must buy out the nonoccupying spouse. These types of negotiations are often difficult and best handled with the help of a skilled divorce attorney.

The Law Offices of Jennifer Courtney & Associates, P.C. handles all aspects of property division during divorce. We serve clients throughout Bucks County, including Newtown, Washington Crossing, and Richboro. Call us at 215.493.3360 or contact our Yardley office online to schedule a consultation.

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