When divorce conversations turn to division of property, things can get heated, especially where the home is concerned. During divorce, property shared by the couple is divided. Almost everything the couple acquires after marriage is considered marital or community property and is subject to division. Couples who are divorcing should understand how property, including the family home, should be divided under the law. Only a divorce attorney can tell who who gets to keep the house during divorce.
Several states are classified as community property states, which define almost all marital property as either community or separate property. When a couple residing in these states divorces, community property is evenly divided and the owner of separate property retains those items. Other states follow an equitable distribution method of property division, with each spouse getting a fair percentage of the marital estate.
The simplest way to handle division of property during a divorce is for the couple to make the decisions themselves. However, this is not always easy to do, so the issue often must be decided in court. When commingled funds are used to purchase property, the court will usually deem it community property and require its distribution as such.
Which spouse gets the home depends on the circumstances. If the couple has children, the parent who will do most of the childrearing typically keeps the home. If the couple is childless, courts vary in their decisions regarding distribution of a marital home, based on the state property system and divorce property division laws. If separate funds were used to purchase the home, the spouse who paid for it is legally entitled to keep it.
A lawyer for marital property helps divorcing couples with property division requests and drafting property settlement agreements. In a childless marriage where the home was purchased with commingled funds, neither spouse has a legal right to request that the other leave but one of them can try to. An attorney can help one partner fight for the right to retain the marital home without having to resort to underhanded methods like claiming domestic violence.
Divorce and property division are touchy issues and handling them in a professional and objective manner is the best approach. Both spouses may want to obtain separate representation from a lawyer for marital property division so they are aware of their rights. This can make it much easier to decide who gets the home and other marital property, regardless of whether the issue must go to court. Seeking the assistance of an experienced attorney is a smart decision, even if just to get an evaluation and see what rights you may need to protect.