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Who Gets the Marital Home in a Divorce?
Deciding who gets the house in divorce involves more than just determining who wants it. You also need to consider mortgage responsibilities and whether you actually have the means to keep the house. Your house is usually the largest marital asset, so it is important that all the alternative are understood. One big issue is what to do during a separation about the house. Who gets to stay and who has to leave? If it is a home you owned before marriage and is in your name alone, you are within your rights to ask your spouse to leave. If the home is jointly owned, then you can't force your spouse to leave since they are an owner as well. If you want them to leave and they won't, you will need to go to court to get sole temporary residence of the home while the divorce is pending. If the home is in your spouse's name and was purchased before the marriage, you may still be entitled to some of the equity if you helped keep it up or made the mortgage payments. You could also be given the right to live there by the court for a period of time. The home is marital property, and the mortgage is marital debt. Both will be divided by the court. This could mean one of you stays in the house and the other gets more of the other marital assets, or it could mean you sell the home and both take a portion of the equity. If you want to stay in the home, there are certainly ways to work that out. You could negotiate a certain number of years of residence, or you could take title to the home in exchange for giving them other assets. It is also common for the residential parent to have the right to live in the marital home until the children are grown. If you believe your home is separate property, for example, if the home was purchased using money that was not marital funds, such as an inheritance or gift, you need to be able to directly trace the purchase. If you jointly paid a mortgage or if your spouse helped with upkeep around the house, then they are entitled to a portion of the equity, but you would still likely get the money you put into as separate property. There are several ways to buy your spouse out of their equity of the house. The easiest, and less expensive way is to take a look at all your assets, including equity of the home. You might be able to trade other assets for their equity in the home. Say for example, there is $20k of equity and you together own $30k of other assets. To buy out your spouse's 10k of equity, you would trade 10k of your interest in the other assets. You walk away with 20k in equity in the home and 5k in other assets. He walks away with 25k in other assets. The other option is to take out a home equity loan to pay him off, or to use your own separate assets to do so. It is smart to get a valuation of the property, or asking the court to order one. The court then accepts this figure and he has to sell it to you for half of that. Usually each side presents a valuation and the court will often land in the middle.
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