Divorce 101: Who Gets the House in a Divorce?

A divorce puts homeowners under a particular strain. When you own a house and split up, you can either sell the home or keep it by buying out your partner. Find out the pros and cons of keeping vs. selling your home when getting divorced to decide what's best for you.

Keeping the House in a Divorce

There are many reasons to consider keeping the family home despite a divorce.

If you have a young child, they may adjust to the divorce better when they remain in the family home, even if you are sharing custody with your ex. Divorce plus two moves can be a significant adjustment for a child, as can starting a new school if relocation would place you outside the current school district.

If you want to stay in the home for your child, then you will need to buy out your spouse by paying for their half of the house or coming to an equitable agreement that reflects your circumstances. If the split is amicable, an ex may settle for less than half when they know it's in the child's best interest.

If you know you would not be able to qualify for a mortgage on your own, then you may want to buy out your ex so you can remain a homeowner.

If you bought your house during a bubble, you could lose money by selling it. If this is the case, you might buy out (or sell to) your spouse to avoid taking a loss. Alternately, you could rent the house and share the profits with your ex until the market improves and you two can sell for a profit. A real estate agent can estimate your home's free market value so you can decide whether a sale would be profitable at present.

Selling the House in a Divorce

From painful memories to an inability to pay the mortgage and taxes, there are several valid reasons to sell the home when you're getting divorced.

Some people desire a fresh start after the end of a marriage. Nothing says "fresh start" quite like a new apartment full of things you love, that are unique to you.

Do the math by reviewing mortgage payments and real estate taxes. As a general rule, rent should be no more than one-third of your income. If paying for the family home exceeds the one-third rule, you are best off selling the house and moving somewhere you can afford. Refinancing the mortgage may lower your monthly payments and help make the property more affordable. If it's a close call, talking with your mortgage lender about refinancing options may make the difference between selling or keeping the house.

If you sell the house, you and your spouse can either agree on how to split the profit or let a judge determine a fair distribution. You can use your share of the proceeds to start over.

Since divorce is often painful, it helps to sell the home quickly, so you can move on. Cash buyers, who do not need to obtain mortgage financing, can be your savior here by helping you close the deal in weeks instead of months.

Who gets the house in a divorce can be a complicated question. Before you make any sudden moves, consult your attorney. A family law attorney can help you best understand the financial, tax, and legal implications of any action you take when getting divorced. If you have any questions about who gets the in a divorce, call the Law Offices of Peter Van Aulen at 201-845-7400 for a free in office consultation.

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