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What happens to the house in divorce?

| Nov 20, 2020 | Property Division

They say a person’s home is their castle and their refuge from the world. During the Covid-19 pandemic, many of us have grown to appreciate our homes even more as a refuge from fear of the virus and from wearing masks. For all these reasons and more, the marital residence is likely to be one of the most financially and emotionally valuable assets in any marriage.

What happens when that marriage comes to an end? Does either spouse have a claim to the house? And if not, how should the marital residence be handled? Like most legal questions, the answers significantly depend on context.

Examining ownership prior to marriage

If one spouse owned the house outright prior to marriage, chances are good that he or she would have the right to retain it in divorce. Having just one name on the mortgage means a lot, legally speaking.

However, there are many cases in which one spouse buys a house as a single person but continues to make mortgage payments for many years after getting married. In such cases, the other spouse would likely have an ownership stake in the house because commingled assets were used to continue making mortgage payments. The original owning spouse’s share in the total equity would be greater because he or she first made mortgage payments (and perhaps a down payment) as a single person.

In cases where a home was purchased jointly after the marriage and both spouses have their name on the mortgage, the property likely belongs to each spouse equally. Neither has a stronger legal or financial claim to it.

Legal options for a house divided by divorce

In any divorce wherein both spouses have at least some claim to the marital residence, there are two options on what to do with this high-ticket asset. They include:

  • Either spouse keeping the house and trading away other marital assets equivalent to the other spouse’s share
  • Selling the home and splitting the proceeds

What you ultimately decide to do will depend on factors such as your long-term goals for the home and whether your spouse is willing to negotiate for it.

What to do while divorce is pending

Much time may elapse between filing for divorce and completing the process. Must you continue to share a home with your spouse or does one of you need to move out? If equally owned, you both have the right to stay there, but you may not want to. Before you decide to move out or ask your spouse to move out, discuss all options and possible consequences with your attorney.