Divorce: Who Gets the House?

Each state has different rules about the division of marital property. Marital property is the property (both personal and real) acquired during the marriage. It includes retirement accounts, cars, pensions and benefits, bank accounts, and the family home.

Separate property is anything acquired before marriage. Separate property also includes gifts, inheritances, and some personal injury settlements. Spouses usually keep their own separate property in a divorce. If you sold separate property to buy other real estate, the new property may remain separate property.

The most significant 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 overview of the state laws and rules determining who gets the family home in a divorce.

State Divorce Laws

Divorce laws vary from state to state. These laws differ on how the divorcing couple splits marital property. Property division rules apply to marital property, not separate property. A home purchased after the couple marries is marital property. If one spouse inherited the house from their parents, it may be 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

A home is marital property if it was purchased during the marriage with communal assets and is titled in both partners' names. Some states still use the phrase “tenants in the entirety" on a deed to say the owners were married rather than separate owners.

A home may also be marital property if it was substantially developed or improved with marital assets, if mortgage payments were made with community assets, or if other indications were made that the home was intended to be a marital home rather than the separate property of the title holder. If you have any questions about the nature of your property, you should talk to a family law attorney before any issues arise.

The Community Property Approach

Nine states use community property rules. In a community property state, marital assets are divided 50/50 between the divorcing parties. The states which use community property laws are:

  • Arizona
  • California
  • Idaho
  • Louisiana
  • Nevada
  • New Mexico
  • Texas
  • Washington
  • Wisconsin

A community property state may require divorcing couples to sell real estate and other property if they cannot come to a reasonable agreement about the division of property in a divorce.

The Equitable Distribution Approach

All other states use equitable distribution when dividing property. This means that marital property is divided approximately in half, according to various factors. Equitable distribution states consider things like:

  • Minor children who still live in the home. The custodial parent may receive the home, even if it is titled in the other spouse's name
  • The length of the marriage
  • Upkeep and value of the home
  • Additional costs, such as alimony, child support, or spousal support payments

For instance, the court may award a house to the custodial parent of two minor children so they can continue attending school near the marital home. The family law judge in a child custody case will place the children's best interest ahead of the equitable distribution of the property to the parents.

Other Ways To Distribute a House

A married couple can always decide whether one or the other may have the house. If one partner has a deep emotional attachment to the home, the couple may let that person have it. Other alternatives may include:

  • Buy out. In community property states where assets are divided 50/50, partners can sell the home and divide the proceeds. One partner may buy out the other and pay half the value of the home to the other partner. In equitable division states, the judge may award an equal value to the partner who does not receive the home.
  • Partition. If the parties must divide their property, but one partner refuses to sell the house, the judge can order a division of property by court order and force the sale. Partition is used in tenancies in common, but it can happen in divorce cases.
  • Deferred sale. This is frequently done in equitable distribution states where a custodial parent does not receive the house. The parent and children remain there while the minor children finish school. The divorce agreement will give a proposed date for the sale of the home when the children have graduated. The divorce settlement includes the value of the deferred sale as part of the agreement.

In many cases, the person who gets the house will need to refinance the mortgage in only their name.

Additional Resources

Next Steps: Speak to a Divorce Attorney

The divorce process can be messy and divorcing couples need legal advice to divide up property. If you are going through a divorce with marital property, it would be best to speak to a divorce lawyer to protect your interests.

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Can I Solve This on My Own or Do I Need an Attorney?

  • You may not need an attorney for a simple divorce with uncontested issues
  • Legal advice is critical to protect your interests in a contested divorce
  • Divorce lawyers can help secure fair custody/visitation, support, and property division

An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.

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