Getting Divorced: Who Will Get the House?

The courts look at various factors when determining who gets the marital home in a divorce. These factors include whether there are minor children who reside in the home, the mortgage, a spouse's income or earning capacity, if the property was acquired before marriage and, in some cases, the sentimental value to each party. Although the common assumption is that the wife automatically gets the home, there is really no set rule. Courts decide on a case-by-case basis. When it comes to marital property division, the question of who gets house in divorce can become complicated.

Determining Factors

Children

One of the major factors that courts consider when dividing marital property is whether there are any minor children. Courts seek to ensure that children are not unduly inconvenienced by their parents' divorce. Generally, the primary caregiver of the children is awarded the home. This prevents unnecessary upheaval in the children's lives.

Mortgage

A marriage dissolution means that each spouse will no longer have a combined income. This diminishment can be critical when trying to maintain a home. Not only must a mortgage be paid, but there is the reality of maintenance, utilities, insurance and taxes. If either spouse can maintain the home adequately on one income, the court takes that into consideration. However, if paying the mortgage on a single income is simply not feasible, the court or attorneys may advise the parties to consider selling the property and dividing the proceeds.

Income

Courts look at each spouse's income or earning capacity. If a wife is a stay at home mother who has not been in the job market for awhile and may not have her husband's earning capacity, the court may decide that she and the children will be unduly burdened if forced from the family home. Even if there are no children, courts are hesitant to evict a reliant spouse if finding shelter may be a problem.

Pre-marriage Home

If either spouse owned the home before marriage, and the home became the marital home, a court will sometimes still consider the home marital property. The court will deem that the property was purchased "in contemplation of marriage." However, when determining who retains the home, if one spouse solely purchased the home and his or her name is on the deed, that fact will be considered absent any adverse burden to the other spouse.

Sentimental Value

Although courts strive to keep emotions out of legal proceedings, they often do take into account the emotional attachment parties have to a marital home. The length of the marriage is a crucial determinant when an argument of sentimental value is made. A court will more likely take sentiment into consideration where the marriage is decades old as opposed to just a few years. Sentimental attachment is also considered when the house was inherited or has been a spouse's family for years.

Occupancy During the Proceedings

It is a sad truth that spouses become contentious during a divorce and may not be able to reside together once the proceedings have begun. Courts recognize that it is not a good situation when parties in emotional conflict live together. Just think of War of the Roses. In this case, a party can request an order of temporary exclusive occupancy until the divorce is finalized.

Find an Attorney

If you have filed for a divorce, don't assume that you or your spouse automatically gets the marital home. If you want to retain ownership, you may have to make a strong assertion based on a number of factors. Consult with an experienced attorney to determine your rights in this case.

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