Who Gets to Keep the House After Divorce?

Last Updated: May 26, 2022

“Who gets to keep the house after divorce?” is one of the most common questions that arise during a discussion of property division in divorce. A house is one of the most expensive assets that most married couples purchase and when the union ends in divorce, one or both parties may wish to retain the property. Learn about how courts decide who receives the home so you are prepared for the outcome by speaking with an expert family law attorney – connect for a free consultation.

Should You Keep the House After Divorce?

The first question that needs to be asked is whether you should keep the house after the divorce. There are likely many reasons why it would be good to keep it and an equal number of reasons why it would be best to sell the house or have your spouse keep the house instead. This all comes down to the specific circumstances in your individual case – there is no “one-size-fits-all” answer.

Reasons to Keep the House After Divorce

There are many, but a few of the large reasons have to do with life after the divorce is completed. This is impacted by whether someone has children, his or her income, and other assets either party might have. All of these factors need to be thoroughly examined with each individual case to determine what is right for you.

Keeping the Home for Children

When people divorce that have children, the biggest factor will be determining custody, allocation of parental responsibilities, visitation, and parenting time. When a parent is going to have the majority of parenting time with his or her kids post-divorce, it might make sense to keep things consistent and not move them out of their house. By keeping the kids in the same home, their neighborhood friends and school will not change. A big factor in making sure kids deal with divorce in a healthy way is limiting big changes as much as possible. For this reason, the parent with majority parenting time might want to keep the home for their kids.

Can You Afford to Keep the House?

Another essential factor is whether you can afford to keep the house. When a married couple separates, each now has his or her own bills to pay – essentially double – from when they were together. This might make being able to afford the marital home impossible or extremely difficult. Knowing whether the monthly mortgage payments and upkeep is affordable is essential and before deciding to keep the house, a detailed monthly budget should be made. If you want to keep the home and you can afford it, you should fight to do so.

Do Other Assets Impact Keeping the Home?

Oftentimes, the biggest asset that a married couple owns is their home. This may change over time and the biggest asset might be a 401k or an IRA for retirement savings. Keeping the home after a divorce might allow a person to rest easy knowing that the equity they likely have in the home has a smaller potential of disappearing than investing in the stock market. The comfort with knowing that you have a stable living arrangement for you and your family after a divorce can’t be measured in dollars either – it is a sense of security and stability.

Reasons to Not Keep the Home After Divorce

The number of reasons to ditch the marital home post-divorce is also long. Some of the main reasons to not keep the marital home during a divorce might be whether the homes is affordable, whether children are involved, and whether other assets either party has make it not feasible.

The Home Is Not Affordable

Because a divorced couple now has to fend for themselves and pay their own bills out of only his or her salary and no longer a combined income, affording the home might be impossible or a big stretch. By making a detailed budget, it might become obvious that affording the home makes a person “house poor” and that they can’t afford to handle upkeep should something major fail and need repair or replacement. Stretching a persons income to stay in the same house is oftentimes a recipe for disaster and needs to be avoided as a person moves to the next chapter of their life.

Impact on Children on Leaving the Home

Moving the children to a different home, if a parent has majority parenting time, can be an added stressful experience for kids. However, situations like a 50/50 parenting time situation means that the children will be spending at least half their time in a different home anyways. Moving in this situation doesn’t add much more of an impact, so long as the school district remains the same. It also might be best to move to an area where there are better schools and a safer neighborhood which means not keeping the marital home either.

Assets Impact Who Keeps the Home

During a divorce, all property acquired during the marriage (known as ‘marital property’ or in some states ‘community property’) should be either equally (community property states) or equitably (fair, not necessarily 50/50) divided. This means that all assets, including the home, investment accounts, banks, and retirement savings all count towards this division of property.

Because the marital home is normally the largest asset a married couple has, it might make sense to either have one person pay the other person for half of the equity in the home or sell the homes and split the proceeds. Divorce attorneys typically like to ‘trade horses’ by saying one person keeps this asset worth $x and the other person keeps this other asset worth $x for an equal trade. When this isn’t possible, having one person buy the other person out or selling the house is the only feasible plan. Selling the home during divorce might also give each person enough money to pay off debts and secure a nice down payment for new, more affordable home themselves, which can relieve stress on each person.

A Home is Typically Marital Property

Marital property is property acquired during a marriage. If a home falls into this category, property laws of the state dictate who owns the property after a divorce. Property purchased during the marriage, however, is almost always marital property and thus, subject to division during a divorce. Keep in mind that division of property in a divorce is extremely complex, and a divorce lawyer should be consulted to make sure assets are properly divided.

When real estate is purchased prior to the marriage, that property is typically referred to as ‘nonmarital property’ and it is owned solely by the one spouse only. However, if significant improvements are done during the marriage or years and years of payments are made on the home, the house might be converted into marital property (or all those payments and improvements might be called a contribution which adds up to a large marital amount).

Premarital Agreements Affect Property Division

The couple may enter a premarital agreement that explains how marital property should be distributed upon divorce. A premarital agreement might state that a specific amount of the home, whether paid off or not, might be awarded to a certain person. A premarital agreement might also state that one person gets the house upon divorce, regardless of who paid the mortgage payments or who paid for improvements on the home. Premarital agreements can sometimes seem to make a future divorce easier, but they typically make them more complex.

Division of Marital Home Without a Prenup

Without a premarital agreement, a court will determine how to divide marital property. Whether a person lives in a community property state (only a handful of states) or an equitable division of property state (the vast majority of states), the court will decide things slightly differently

Equitable Division of Property States

In an equitable division of property state, the judge tries to divide all marital property, including the marital home, “fairly.” Fairly does NOT mean equally or 50/50 – but it typically does. The court bases its decision on the personal circumstances of the couple. If the spouses have children, the marital home is usually awarded to the parent who will do the majority of the childrearing.

If there are other assets worth equal or more money in one spouse’s name, the judge might try to even the assets out by giving the house to the other spouse. This is almost always a tricky balancing act. In equitable division of property states, (the majority of states in the U.S.), a judge very likely might order the marital home sold so that the court can decide who gets a certain percentage of the proceeds. Because it is not an equal division, the court might award it on a 70/30 basis, or something else.

Community Property States

In community property states, all property acquired during the marriage is divided equally, with rare and limited exception. This means that each person is owed 50% of everything, including the house. Again, this might mean one person keeps their 401k or pension and the other person keeps the house. It might also mean selling the house and splitting the proceeds (or losses) equally.

Because the handful of states with community property laws consider all assets acquired during a marriage community property, each spouse has 50 percent ownership. If the home was acquired by one party before the marriage, it is owned only by that person and is considered separate property. If the home is community property, one spouse cannot alienate the other from his or her 50 percent ownership.

Since dividing a home in half is not feasible, the court often awards the house to one spouse. The other spouse is awarded other assets whose value equals the 50 percent ownership of the home. Couples residing in community property states are also permitted to enter premarital agreements that stipulate the division of marital property upon divorce.

Next Steps – Dealing with the Marital Home

When a home is considered community or marital property in divorce, neither spouse has the legal right to make the other to move out and leave. This can be tricky because if both people want to keep the house, the fight to stay begins right away. This is where an experienced divorce attorney can help. And what if neither person wants to keep the house, what happens before the divorce is finalized? These issues need to be agreed to between each person or a judge will decide for you, which is hardly ever the best solution. Working with a divorce attorney can help people come to an agreed solution without the time and expense of fighting in court, and most divorce attorneys offer free consultations to discuss things like who should keep the marital home after a divorce.

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