One of the primary issues that must be addressed when ending a marriage is the division of the parties’ assets, including the family home, if they own it. Each spouse may want the house for different reasons, including keeping their children in the same place and having it as a personal asset.
Unfortunately, there’s no universal answer to the question of who gets the house in a divorce. It differs from case to case depending on the specific circumstances involved. That said, there are certain things to be aware of that may help you determine whether and to what extent you may be entitled to all or a portion of the family home.
This article explains what happens when you divorce and you own a home together with your spouse. We go over property division laws in community property states compared to equitable distribution states. We also discuss how children may affect who gets the house.
Quality legal care for life’s ups and downs
Get startedShare with
Published on July 5, 2023 · 5 min read
Community property vs equitable distribution
There are multiple factors to take into account when considering who might get the house in a divorce. One of the most important is the applicable law regarding marital property division in your jurisdiction.
The two primary approaches to property division for a married couple are:
The two primary approaches to property division for a married couple are:
Community property
Equitable distribution
Division of assets in a community property state
In community property states, there’s a general presumption that all property acquired during the marriage is considered “community” property that’s subject to equal division between the parties in the event of a divorce. This is true even when certain property is acquired by one spouse, rather than by both spouses jointly.
In effect, this means that so long as the home was acquired during the marriage, each party is typically entitled to a 50-percent interest. Importantly, this extends to all assets acquired during the marriage, such as vehicles, bank accounts and retirement accounts, as well as liabilities and debts incurred.
Currently, the following states follow community property rules:
Idaho
Louisiana
New Mexico
Nevada
Wisconsin
Alaska, South Dakota and Tennessee also have optional community property systems. This type of system allows couples to agree to treat their property as community property, if they wish to.
Note, however, that not all community property states follow precisely the same rules regarding property division. Check the laws or consult with an attorney in your state before proceeding. For examples of how equitable distribution states handle property division, see how property is divided in a divorce in Colorado, Georgia, Illinois, and Michigan.
Division of assets in an equitable distribution state
The remaining states are equitable distribution states, where property is divided subject to principles of equity and fairness. To divide the marital home in an equitable distribution jurisdiction, the court may consider factors including the:
Length of the marriage
Income and future earning capacity of each spouse
Contributions to the marriage, both financial and non-financial, by each spouse
Standards of living of the parties during the marriage
Existence of any custody arrangements regarding shared children
Value of the property
Existence of any prenuptial or postnuptial agreements governing who gets the house in a divorce
In many cases, a house acquired during the marriage will be divided equally in an equitable distribution state. However, the court’s primary objective is to determine the most fair and “equitable” outcome for all parties involved. Thus, equitable doesn’t always mean equal.
How courts divide the marital home
There are several common methods courts may use to divide the marital home, including:
Ordering the parties to sell the home and divide the proceeds
Awarding the home to one party and awarding an equivalent asset (such as a retirement account) to the other party
Awarding the home to one party and requiring them to refinance it to buy out the other party’s interest
The court typically takes the parties’ individual needs and desires into account in deciding which approach to take. The parties may also reach an agreement on how to divide the home.
Who gets the house in a divorce with children
Division of the marital home may be more complicated if the spouses share children.
Your jurisdiction’s general laws (community property or equitable distribution) still apply. Additionally, the court may also consider the children’s needs in dividing the marital home.
In many cases, courts try to make a decision that allows the children to stay in the home. This means that if the spouses can’t reach an agreement about who should get the house, the parent awarded primary physical custody or residency of the children is more likely to receive the home. The court may then award the other parent a larger portion of other assets so that each party obtains as close to an equal 50-percent share of the total marital property as possible.
Still, each case is unique. An experienced family law attorney in your state can provide more guidance based on your local laws and the specific circumstances of your divorce.
When to speak with an attorney
No part of a divorce is easy, and dividing your home and other marital property can be a particularly heated issue. You don’t have to hire an attorney, but having them help with property division (and any other aspect of your divorce) may be an asset. An experienced family law attorney in your state will understand the applicable laws and know how to proceed to best protect your rights and interests.
Share with
Author Bio
The Marble Team
Your family & immigration law firm
We are Marble - a nationwide law firm focusing on family & immigration law
See my bio page
Quality legal help for life’s ups and downs
Get started right away
Family Law
DisclaimerAttorney Advertising. Prior results do not guarantee a similar outcome. The individuals represented in photographs on this website may not be attorneys or clients, and could be fictional portrayals by actors or models. This website and its content (“Site”) are intended for general informational purposes only. It does not constitute legal advice and is no substitute for consulting a licensed attorney. Only an attorney can provide you with legal advice, only after considering your specific facts and circumstances. You should not act on any information on the Site without first seeking the advice of an attorney. Submitting information via any of the forms on the Site does not create an attorney-client relationship and no such communication will be treated as confidential. Marble accepts clients for its practice areas within the states in which it operates and does not seek to represent clients in jurisdictions where doing so would be unauthorized.