Before we dive into the specifics of who gets the house in a divorce, let’s talk a little bit about how marital asset division works in general.
There are two basic models for how to deal with marital property (and marital debt) in a divorce: the community property model, and the equitable distribution model.
In the community property model of property division, real estate and other property are divided into two separate categories: separate property and marital property.
Separate property includes anything you owned before the marriage, as well as any gifts or inheritances you received during the marriage. Marital property includes anything you purchased or earned during the marriage.
If you live in a community property state, then you will automatically keep any separate property that you own. Your marital property, however, will be split up 50/50 if you and your spouse take your divorce proceedings to court.
The community property model of the divorce process is the law in a minority of states, but some of those states boast large populations. If you’re undergoing a California divorce, for example, you can expect to get really familiar with community property divorce law.
In an equitable distribution divorce case, the family court will take a holistic look at the circumstances of your marriage and attempt to make a decision based on principles of fairness (a.k.a. equity).
It’s important to keep in mind, however, that an equitable division doesn’t always mean an equal division.
If one spouse has significantly greater need and/or made a significantly greater financial contribution to the marriage, then the court will most likely give them the better end of the deal.
As your divorce attorney might have already told you, equitable distribution tends to be the less predictable model, because the judge has a lot more discretion in deciding your case.
Most states fit neatly into one of these two models, but some states take a somewhat hybrid approach.
In a Texas divorce, for example, you can expect to mostly be beholden to the community property model, but the judge is also required to make a decision that is “just and right”, which means they do have some of the discretion more commonly associated with equitable distribution.
This allows the judge to consider fault (like adultery or domestic violence) when splitting up assets.
If you don’t like the sound of this, then you’re actually in luck. You’re only beholden to your state’s model of dividing property if you’re caught up in a contested divorce, in which the court figures out the terms of your divorce settlement for you before issuing a divorce decree.
If you’re undergoing an uncontested divorce, then you and your spouse have the freedom to cook up whatever kind of deal you want, as long as you both agree to it. Retaining control gives divorcing spouses a lot of incentive to try their best to work together!
If you’re looking for some perspective on how to accomplish this goal, you can click here to read our founder Laura Wasser’s story of how she and her ex decided to divide up their stuff.
She may be a family law attorney, but the two of them went through it just like any other divorcing couple.
Who Wants the House?
Whether you’re leaving the division of your marital estate up to the court or working it out just between you and your spouse, preference can play a big part in who ends up keeping the home rights.
If one spouse wants to keep the marital house and the other doesn’t, then you can probably make it happen as long as there are adequate other assets to allow the spouse who wants to keep the house to buy the other spouse out of their interest.
If it’s important to you to keep the marital residence, but not important enough that you’re willing to drain your retirement account, then you may also be able to pull equity out of the house with which to buy out your ex.
The curt may seem bureaucratic and inhuman, but it’s still in their best interest to honor your preferences whenever possible, because it may prevent additional litigation down the line.
Problems only really arise when either (a) a married couple has inadequate assets (including home equity) for either spouse to keep the marital home, or (b) both parties want the marital home and are willing to fight for it.
In these situations, the court may resort to ordering a sale, and there isn’t much your divorce lawyer can do about it.
Is the House a Separate Property or Community Property?
Real estate presents some particular challenges when it comes to distinguishing between community and separate property. That’s because the vast majority of people buy real estate subject to a mortgage rather than paying for the entire piece of real property all at once.
What if one spouse owned the house prior to the marriage, but the other spouse was responsible for all or most of the mortgage payment? What if you bought the house together, but one spouse used an inheritance to pay off the mortgage?
In cases like these, one spouse may be entitled to reimbursement for their contribution to the mortgage, even if the house technically belongs to the other spouse or falls under the category of marital property.
The law regarding reimbursement for mortgage payments varies from state to state, but the burden of proof always falls on the spouse who is asking to be reimbursed.
It’s also often up to the discretion of the court, so the bottom line is that you shouldn’t expect to be compensated for paying the mortgage on your marital home, even if it isn’t technically classified as marital property at all.
How a Prenuptial (or Postnuptial) Agreement Affects Who Gets the Marital Home
Now, you probably already know that the entire point of a prenuptial or postnuptial agreement is to avoid the dreaded court battle should your marriage end in divorce.
So, it makes sense that your pre-divorce agreement can actually be completely determinative when it comes to figuring out who gets to keep the family home.
What you may not realize is that prenups and postnups can address separate and marital property alike. That means that these agreements can be really useful for clearing up those separate/marital property ambiguities that arise depending on who pays the mortgage discussed above.
The main concern of a court tasked with enforcing a prenup or postnup is that it appears freely and fairly negotiated.
Beyond that, there are just a couple of outright no-nos, like a prenup or postnup can’t determine issues regarding child custody and child support or assign spousal duties within the marriage.
As a side note, if you’re reading this prior to getting married, we strongly encourage you to get a prenup, even if you don’t have or owe much right now.
We know it’s tough having these conversations with your future spouse, but marriage is a big enough commitment to warrant the tough conversations.
Factors that the Court Takes into Consideration when Determining Who Gets the House
Factor 1: Which Party Can Afford to Keep the House?
There isn’t much point in awarding the marital home to a divorcee who won’t be able to afford the mortgage, now is there? That’s why your personal finances matter a great deal with regard to whether you’ll end up with the house once the marriage is over.
There are a lot of expenses associated with homeownership. Of course, there’s the monthly mortgage payment, but there’s also upkeep, utilities, and additional possible expenses like homeowners’ association fees.
Don’t worry, though. When assessing this factor, the court will look at the full picture (including things like alimony and child support) rather than just your professional income.
The point of alimony is to allow the non-breadwinning spouse to maintain a lifestyle similar to that which their marriage afforded them.
So, if you have little or no professional income but you’re entitled to long-term alimony, you might still be able to keep a house classified as marital property (depending on a number of other factors).
Of course, the other side of this coin is that if neither party will be able to afford the mortgage and other expenses once the split is finalized, the court will most likely order a sale.
Despite this seeming harsh, they are looking out for your best interest by making sure you avoid foreclosure down the road.
Factor 2: Which Parent Has Primary Custody of the Children?
If you and your soon-to-be ex-spouse have minor children together, then the court may very well take child custody into consideration when determining which parent keeps the house.
Courts recognize that children need stability, especially during a major upheaval like a divorce. A great way to support that is by keeping the children in the family home whenever possible.
This is great news for you if you’re taking on the role of the custodial parent in your divorce. Calling quits while raising young children is a full enough plate as it is; the last thing you want to worry about is finding a new place to call home.
Factor 3: Are there Hotly Contested Issues Besides the Marital Home?
When it comes to splitting up lives and finances, family court judges have their work cut out for them. At the end of the day, they are just trying their best to produce a deal that feels roughly fair to both parties.
Thus, if there are other hotly contested, high-value assets at issue in a divorce, the house might become more of a bargaining chip than the main issue.
For instance, maybe you and your spouse have an antique car -- something indivisible that can be valuable both financially and sentimentally -- but the house was just purchased a couple of years ago and feels more like a practical commodity.
In a situation like this, the house can turn into a compelling consolation prize for the spouse who has the weaker argument for getting to keep the prized vehicle.
If the home has higher monetary value but lower sentimental value, then perhaps both spouses can come out of court feeling like they got the better end of the deal.
Do I Have to Sell MY House?
If your home is truly separate property, then it is very unlikely that a court will even encourage you to sell it in order to reach a divorce settlement, let alone compel you. Legally, that house belongs to you and you alone, and it is yours to do with it what you please.
Now, the caveat is that if there is marital property that you want more than your separately-owned home, it may make sense for you to sell your home in order for you to be able to afford to buy your spouse out of their interest in that marital property.
However, that will be your decision to make. We’re not saying it’s an easy decision, but having more assets (separate or marital) gives you more freedom to reach a settlement that feels right to you.
How to Buy Out Your Spouse’s Rights to the House
As we briefly mentioned above, there are two general ways to buy your spouse out of their interest in the house. You can either let them keep all or most of the other marital asset(s), or you can refinance your home and give them their share of the equity you had in cash.
This is an easier decision to make when you don’t have to dip into the equity, of course. If you and your spouse shared a lot of fairly liquid assets, then it may not be such a big deal to say some of those funds.
However, even if the two of you aren’t particularly cash-rich, refinancing can be a great option for you if you feel really strongly about staying put in a house you love.