Divorce: Who Gets the House?

Each state has different rules regarding what marital property is divided during a divorce and how the property is split amongst the divorcing couple. Marital property is the property (both personal and real) that is acquired during the marriage, which may include a wide range of items such as retirement accounts, cars, pensions and benefits, and the family home.

A property will be considered separate if you got it as a gift or inherited it. It will also be separate property if you bought the property before the marriage. The judge will usually order spouses to keep their own separate property in a divorce. Similarly, if you sold a piece of separate property in order to buy your new property, the new property remains separate property.

The biggest factor determining how a separating couple's home will be split is whether their state follows the community property approach or equitable distribution rules. This article provides an introductory overview of the state laws and rules that will determine who gets the house in a divorce.

State Divorce Laws

Divorce laws vary from state to state, and these laws differ on how marital property is split between the divorcing couple. Note that property division rules will only apply to marital property, and will not be applied to separate property. For example, if the home was purchased together after the couple was married, the home would be considered marital property. However, if the home was inherited from one of the spouse's parents, this may be considered separate property.

Property division will depend on several factors, including:

• Where you live
• When the property was purchased
• How long you have been married
• How the property was titled

State laws govern how divorcing couples divide property among themselves. States follow one of the following two approaches when dividing up property during a divorce.

The Community Property Approach

If you live in a state that follows community property rules, you and your ex will split most divorce assets in half. This likely means that you and your ex-spouse will get 50% of the value of your home or home value if you bought it during your marriage. The nine states that follow community property rules are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

The Equitable Distribution Approach

The remaining states typically follow equitable distribution. If your state follows equitable distribution, the judge will divide the property as they deem fair. This means the court will decide, on a case-by-case basis, the kind of division that would be fair for everyone involved. You should note that in both community and equitable distribution states, a judge will not divide property if the property is identified as one of the spouse's separate properties, although this is subject to a rebuttable presumption in some states.

Additional Resources

• Divorce Property Division FAQ
• Sample Form: Property Settlement Agreement
• Can I Legally Stay in My House During a Divorce?

Next Steps: Speak to a Divorce Attorney

Oftentimes, divorce can be messy and spouses will need the court's intervention to divide up property. If you are going through a divorce with marital property, it would be best to speak to a divorce attorney to make sure your interests are protected.