Divorce is a challenging and emotional process that affects various aspects of one’s life, including current and future living arrangements. During a divorce, deciding who gets to stay in the marital home can be a topic of contention. Both parties often seek ownership of the house, wanting to disrupt their current life as little as possible and maintain often one of the biggest marital assets.
Since ownership of the home can be one of the most complex issues in a divorce, below we’ll discuss the factors that come into play when determining who gets to stay in the house during a divorce.
Legal Ownership of the Marital Home
Legal ownership of the marital home is often the first topic discussed when understanding who gets to stay in the house. In most cases, the marital home is considered marital property, regardless of whose name is on the deed. “Even if a home is only in one spouse’s name when purchased, if it was purchased during the marriage it is a marital asset,” note divorce lawyers at Fernandez & Karney, “If the home was one spouse’s inheritance, it continues to belong to that spouse, unless the other spouse makes significant improvements or invests money and/or time into adding to the value of the home, in which case, it becomes community property.”
Marital property typically includes assets acquired during the marriage, and the house falls under this category if it was bought or paid for during the union. In community property states, like California and Texas, assets acquired during the marriage are usually split equally between both parties, including the house.
Custody of Children
When a divorcing couple has children, the child custody arrangement can heavily influence who gets to stay in the house. Courts always prioritize the best interests of the children in family law cases, usually attempting to disrupt the children’s lives a little as possible.
If the custodial parent wants to remain in the house to provide stability and continuity for the children, that parent may have a stronger claim to stay in the property during the divorce.
Financial Ability
The financial status and ability of each spouse is also an important factor in deciding who is able to live in the house during the divorce process. The court will determine if one spouse can financially afford to maintain the house with the various financial expectations: mortgage payments, property taxes and general house maintenance costs.
If one spouse has significantly higher income or access to financial resources to sustain the home, that spouse may be more likely to keep the house.
Contributions to the House
Another consideration is the contributions made by each spouse to the home. Contributions to the home can go beyond financial contributions and can include physical labor, improvements, or renovations made to the home during the marriage.
A spouse who invested more time and effort into the house may be given preference in staying in the home.
Temporary or Permanent Orders
During the divorce process, the court may issue temporary orders to establish living arrangements until a final decision is made. Temporary court orders can dictate who stays in the house during the divorce proceedings. Keep in mind that temporary orders are not always indicative of the final ruling!
Refinancing and Buyouts
If one spouse wishes to stay in the house but cannot afford to buy out the other party’s share, refinancing the home mortgage may be a viable option. By refinancing, the staying spouse would take full ownership of the house, releasing the other spouse from any financial obligations.
Deciding Who Moves and Stays
Deciding who gets to stay in the house during a divorce can be complicated. The process to determine who gets to stay is a complex process that involves legal, financial and emotional considerations. The court will prioritize the best interests of any children involved and assess each spouse’s financial ability and contributions to the property to help decide who stays during a house in a divorce.
In some cases, mutual agreements can be reached outside of court, which can result in less time and money for both parties involved. Whatever the outcome, it is essential to approach the situation with quality legal counsel and understanding to navigate this challenging period successfully.
