Who Gets The House In A Divorce?

Figuring who will keep the house, or whether it will be sold, is frequently one of the most contentious issues of a divorce. A house is usually the family’s most valuable asset and most emotionally significant item. When it comes time to make a decision, there are several factors to consider, and some that either or both spouses may not be able to control.

If there are children in the family, that can also lend a further layer of complication to how the home is dealt with, as many parents (and judges too) are reluctant to pull children out of a familiar environment unless absolutely necessary.
 

Who Owns The House?

The first step in figuring out who gets the house in a divorce is to determine who owns it. In California, this can be a tricky process due to the state’s community property laws.

In the most common situation, spouses who have bought the home together during the marriage and who are both listed on the title are considered equal owners. However, if for some reason only one spouse is listed on the title, the title creates a presumption that the house is separate property and belongs to the spouse whose name is on it.

That presumption of ownership can be overcome, but it’s typically quite difficult. The spouse whose name is not on the title must prove there was an agreement or understanding that the house belonged to both spouses equally.

Finally, when a spouse buys a home prior to the marriage, that home is generally considered that spouse’s separate property. However, the situation becomes more complicated when the spouse who is not on title contributes money to the mortgage or payments for improvements to the home during the marriage.

In that case, that spouse would have an interest in the home, which can be significant, especially with a long marriage.
 

Who Gets The House?

Firstly, if the house is considered separate property, the spouse who is the owner will get the house, full stop. If the house is determined to be community property however, there are several ways it can be divided — either by mutual agreement or court order in the divorce judgement.

Sell And Divide: While usually not the first choice, spouses can agree to sell their home and split the profits from the sale. This is a common scenario when neither spouse can afford to keep and maintain the home individually, or when the issue is so contentious that neither spouse will agree to let the other keep the home.

Buy Out: In this option, one spouse agrees to pay the other for their share of the home in order to take full ownership. The buying spouse will likely need to refinance the home so that the selling spouse can be removed from the mortgage.

Deferred Sale: This is another option most commonly used when there are minor children in the family. The court may make an order that temporarily delays sale of the home. Under this scenario, both spouses continue to own the home jointly for a set period, giving the custodial parent exclusive use and possession of the home during this time. The purpose of a deferred sale order is to minimize the impact of the divorce on the children.
 

Navigating The Process

Selling a home is challenging enough on its own. Trying to navigate a sale or buyout during a divorce is an order of magnitude more difficult. Because of the challenges, and the emotions usually present, it’s highly recommended that you seek assistance from a competent divorce attorney to help guide you through the process.

While your attorney will not, of course, act as your real estate agent — they can make helpful recommendations and ensure that the sale or acquisition of the family home complies will any and all legal stipulations in the divorce and any court orders.