Who Gets the House In Divorce

Updated by Tracy Achen, Divorce Coach
Answer by Timothy McNamara, Financial Expert 

Deciding who gets the house in divorce is a bit more complicated than just agreeing on who wants it. The answer isn’t always simple, especially when children are involved or if the house holds significant financial value. To help you understand the various options, here are the key legal, emotional, and practical factors that determine who stays, who goes, and what to consider.

Why the House Matters So Much in Divorce

Deciding who will get the house in a divorce

For many couples, the family home is more than just a place to live. It also represents security, memories, and the life they built together. And this emotional attachment can make negotiations difficult, especially if children are involved and one parent wants to maintain stability for them. On top of that, the home is often the couple’s most valuable asset, which makes it a central issue in property division.

Legal Framework: How Property Is Divided

Understanding how your state handles property division is the first step in answering who gets the house.

Community Property States (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin): Assets that are acquired during the marriage are generally split 50/50 in a community property state, including the marital home.

Equitable Distribution States (the remaining states): Property is divided fairly, but not necessarily equally. Courts will consider a variety of factors including each spouse’s income, needs, and contributions.

One key distinction is whether the home is considered marital or separate property. If the home was purchased before the marriage or inherited by one spouse, it may not be subject to division in the divorce. However, if the other spouse was added to the deed or if both contributed financially or otherwise, it likely counts as marital property.

Key Factors That Influence Who Gets the House in Divorce

Here are the most common factors courts consider when deciding who keeps the home:

  • Whose name is on the deed? Legal ownership matters, but it’s not always the final word. The court also looks at the contributions made during the marriage. For example, if a spouse regularly paid the mortgage or provided upkeep on the house, the home may be considered a joint asset. 

  • Who is the primary caregiver of the children? If one parent is awarded primary custody of the children, the judge may allow that parent to stay in the home, especially if it offers consistency in schooling, community, and routine. However, that doesn’t mean they get to keep it permanently. 

  • The ability to afford the home: Can one spouse buy out the other's share? Can that spouse refinance or assume the mortgage? Financial feasibility plays a huge role in determining who gets the house in divorce. 

  • Any valid premarital or postnuptial agreements: Some couples have a premarital agreement that details how property will be handled in the event of a divorce. A postnuptial agreement can also specify who gets the house in a divorce. 

  • Debt and equity: The court will consider if there's equity in the home and how debt will be managed.

Common Outcomes for the Family Home

When a couple divorces, here are some typical ways the home is handled:

  • Sell the house and split the proceeds - This is often the cleanest financial solution, though it can be emotionally difficult. 

  • One spouse buys out the other - The spouse who is keeping the home refinances the mortgage and pays the other spouse their share of the equity. 

  • One spouse has temporary primary residency - One parent stays in the home until the children graduate, then the house is sold and profits divided. Some arrangements only last until the children turn 18. 

  • Co-owning the house after divorce - Some couples agree to keep the home jointly, renting it out or using it as a nesting home for the children. This requires a high level of cooperation and is hard to maintain over time.

Practical and Financial Considerations

Even if one spouse wants the house, can they realistically afford it? It can be challenging to maintain a home on just one income.

Before making the decision to keep the home, you need to determine if you can qualify for a mortgage based on your income alone. You will also need to factor in if you can cover the cost of maintaining the house and if you are willing to give up other assets in the divorce to be able to keep the home?

And finally, there are tax implications you need to consider. Selling the house could trigger capital gains taxes, depending on the timing and the amount of equity involved. You should consult with a tax professional to find out what your options are before making your decision.

FAQ about Who Gets the House in Divorce

Our financial advisor, Timothy McNamara, has given his input and points out some things to keep in mind when making the decision on whether to keep the marital home or not.

What should I consider if I keep the home?

Kelly's Question: I've been a stay at home mom for 7 years with no income what so ever. We bought a house shortly after we married, and everything is in his name since I had no income to contribute. If I stay in the home, do I get everything put in my name with his alimony as my income? I don't want to be dependent on him to be able to stay here, but any job that I would qualify for wouldn't pay enough to cover the mortgage for this home. I have 5 children ages 4-14 and I've been told I'd probably be awarded as the primary custodial parent so I'd need a house this size.

Timothy's Answer: You are being faced with perhaps one of the most difficult questions one faces when going through a divorce, the decision as to whether or not to keep the marital home. In my personal experience, maintaining the marital home vs. selling it is one of the “top ten” mistakes most couples often make when divorcing.

The key thing to keep in mind here is the house does not pay your bills. While currently you have not been given the option to stay or not, you should be intimately aware of the financial consequences of keeping the home should this be an option to you. While you may end up receiving support in the form of child support and alimony, this amount may be far less than what you would need to maintain the home, as well as pay for the rest of your living expenses and raise your five children.

I would strongly recommend you get some good financial advice from someone other than your attorney. I always recommend you seek the advice of a trained expert in divorce finance like a Certified Divorce Financial Analyst. These individuals are experts in divorce finance and can help you run various scenarios to understand what your best options are. Sometimes, the court may order the wife to maintain the marital home without fully understanding the financial consequences of doing so. This can be financially devastating to a family and therefore you owe it to yourself to seek help in this area.

I can understand how you might feel financially dependent on your husband if he is ordered to pay support to you. However, in you role as a full time mom who is responsible for raising five children, you will obviously require support to meet your expenses. While you may feel dependent on your husband, you must realize that it is also his responsibility to care for your children.

Finally, if it turns out you are awarded the marital home and it is in your best financial interest to maintain it, you can have the deed changed to put the home into your own name. This process is very easy, inexpensive task and can be done with the assistance of almost any attorney.

Final Thoughts

So, who gets the house in divorce? The answer depends on your state’s laws, your financial picture, and what you and your spouse can agree on. Whether you want to stay in the home or walk away with your fair share, the most important step is to get informed and not let emotions make the decisions for you. 

Copyright WomansDivorce.com 

Related: