Who Will Get the House?

Aug 8, 2012 by

In almost all divorce situations, the family home will be considered community property. Under the law, each spouse has a 50% interest in community property. This equation makes determining who receives the house in a divorce a complicated mathematical and legal equation. When there are children involved, courts would prefer that the primary custodian of the children retain the house, especially if the children have lived in the house for a long time.

The rationalization being that the stability of being able to stay in the home is good for the children and that both parents have a legal obligation to provide shelter, food, and clothing for their minor children. However, receiving custody of the children does not guarantee that a spouse will be able to keep the family home. The court weighs several factors when determining the division of the family home.

One factor considered by the court is the ability of each spouse to afford the house. This becomes a critical issue when one spouse is not employed outside of the home. After the divorce decree is final, the ex-spouse has no more obligations to the house and any taxes and repairs will be the sole responsibility of the spouse who received the property. The question then becomes whether the spouse receiving the property has enough income including any alimony or child support payments to afford the house and maintenance.

Another factor evaluated by the court is the amount of equity in the home and how much is left to pay on the mortgage. Since each spouse is entitled to 50% of the equity in the home. The spouse who retains the home owes 50% of the home’s equity to the ex-spouse. If the court allows one spouse to retain the house they will set a date by which the ex-spouse’s interest must be paid out. Failure to pay the required interest can result in a contempt of court violation and the ex-spouse will have a lien against the property.

It is possible for a spouse to have to forgo the receipt of the house even if they can afford the monthly payments if they cannot afford to pay the ex-spouse’s interest. Alternatively the spouses can agree, or the court can order, that neither spouse keep the family home. Instead, the house will be sold, the mortgage paid off, and any residual property will be split evenly between the parties.

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