Should I Keep The House For My Kids During Divorce?

Last Updated on August 11, 2023 @ 8:30 am

Moving Out with Children Post-Divorce

In some cases, keeping the family home after divorce is not the best option for either of the spouses or the children. When this is the situation, custodial parents often need to find a new home for them and their children to live. Leaving a family home and moving into a new environment can be hard for children regardless of their age, especially given all the other changes they are experiencing after their parents have divorced. Moving to a new home with children has challenges, but there are some ways parents can make the transition to the new space smoother for everyone involved.

There are many things to consider when divorcing and finances are included on this list. If the home was purchased with two incomes, one ex-spouse may not be able to afford to keep it on his or her own. In addition to the mortgage payment, property taxes, and homeowner insurance, expenses include utilities, maintenance, and repairs. Having a budget and looking at the numbers to determine how and if you can stick to it are essential to knowing what the best decision is for your family.

Know the Laws Regarding Post-Divorce Relocation

Relocation is when a parent that has the majority of parenting time (sometimes called the ‘custodial parent’) decides that it would be best for that parent and the kids to relocate to another state or, in some instances, a different city. Relocation means that there must be either an agreement between the parents or a judge granted court order. Without an agreement or a court order, the custodial parent may not ‘relocate’ with the children. In most states, this means moving to a different state, and relocation does not come into play even if the move is multiple hours away but still within the state. However, because of traffic congestion in major metropolitan areas, some states have begun to enact new laws that use relocation laws for moving far away within the same state even.

For example, in Illinois, a parent who lives in Cook County (where Chicago is located) or the surrounding counties, moving greater than 25-miles counts as relocation under the law. This is true in other metropolitan areas around the country and special care must be taken to understand these relocation laws so that a parent doesn’t unknowingly violate the law by moving too far away.

Parents who are planning to move far away from their family home with their children after divorce should look at the laws of their state. Every state has its own laws that govern relocating with children after divorce. In most states, the law requires the custodial parent to notify the non-custodial parent in writing about the potential relocation to give him or her the opportunity to protest the move in court. However, some states do not require notification of the relocation unless the move is specifically taking the children out of state. To ensure the move goes smoothly from a legal perspective, make sure to be prepared.

Equity in the Property

In order to retain the home, one spouse may need to purchase the other spouse’s equity in the property. Many divorce lawyers would say that one spouse needs to “buy the other spouse out of the marital home.” This means finding out what the marital home is worth and also the amount that is owed. (A simplified calculation looks like this: house value -minus- mortgage amount = equity. The value of the house can be calculated or estimated a number of ways, possible through a real estate comp from a licensed real estate broker (most of the time this is free or very inexpensive), or even a formal appraisal by a real estate appraiser (usually this costs anywhere from $300-$1,000).  The amount owed can be requested from the mortgage holder to ensure the correct amount is used in the calculation. This is called the “payoff amount.” and the payoff amount is usually valid for at least a week.

For a spouse to buy out the other spouses portion in the marital equity, a number of different plans can be put in place. This may involve a cash payment or giving up other assets that are owned jointly. It may be possible to refinance the home mortgage for an amount that exceeds the mortgage balance and use the proceeds to pay the other spouse for his or her equity in the home.

Is It a Good Idea to Keep the Home?

Keeping the home may seem to provide stability during an otherwise chaotic time. An ex-spouse may opt to keep the house for a short time after divorcing and then make a long-term decision after settling into the new lifestyle. Others decide that selling the home is the best choice because it harbors unhappy memories shared by the children. It is sometimes best to make a clean break and start fresh.

Whichever route a divorcing couple decides to make, they first must decide how to divide the equity as well as the contents of the home. After all, the house has all the belongings of each person, and it might not be fair to make one spouse be forced to purchase all new furniture and furnishings while the other spouse keeps everything inside. This is also a part of the house buyout that must be discussed and sometimes involves making a lengthy list of all items within the home.

Moving out of the marital home or selling the home might make sense to both parties when the house has increased in value substantially over the years. Take the case of a married couple who purchased a home for $150,000 20-years ago and now the home is worth $700,000.00. It might be a good idea to sell and have both parties move because they may be able to each purchase a home in a nearby community for cash after the sale or have a small mortgage and pay off debt or even use a portion to build and fund a college fund for their kids.

Consult with a Family Law Attorney First

Selling the home may seem like it would put the divorced couple in better financial standing, with some cash to use for a down payment on an individual residence. This is not always the case. A divorcing couple should consult with their family law attorney and real estate agent to determine how much they can sell their home for and what selling costs are involved, then subtract the mortgage balance from this figure. Again – this is where the calculation of equity from above comes from.

Getting the House Appraised

If one spouse decides to keep the house after being granted child custody during divorce, the other spouse should have the home appraised. This ensures that the spouse who will not reside there receives a fair amount of money or assets in exchange. If the divorcing couple ends up with joint custody in divorce, the spouse who lives elsewhere will need to adjust to the fact that this house is no longer the family home. This means getting a new home that has enough bedrooms for the kids.

Stay Positive

Even if there are unanswered questions regarding the move, and it is causing the parents anxiety and stress, it is important to portray the move as a positive one for both the parents and the children. Make sure to be honest with children about the changes they will experience, such as sharing rooms or moving to a new school, but being confident and positive with the children to let them know it will all be okay. During this time, make sure to acknowledge the children’s feelings and hesitations, letting them know it is okay to feel sad or worried during this transitional time. Speak with the kids school counselor and let them know what’s going on so that they can keep an eye on behavior that might need to be discussed in a therapeutic type setting.

Allow Children to Adjust

As with any big change in life, children need time to adjust to their new home and new environment. It is unrealistic to expect children to be comfortable or excited during their first night in a new place, especially if they are leaving the only home they have known their entire lives. Extra care should be taken when the kids need to change schools or have moved far away from their friends. Keep in mind that younger children may adjust more quickly since they may not have formed emotional attachments to the previous home and that older children may have a harder time. Make sure to continue with a positive attitude while also allowing the children to express their feelings during the process. Whichever route is taken, take it slow and do not make a rash decision – make sure the change is what is right for you and your family.