Who gets the house in a divorce?

The answer depends on many factors, some of which may surprise you.

beige house with lights on inside

What's Inside

What's Inside

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.

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:

  1. Community property
  2. 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: 

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.

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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.

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Frequently asked questions

Can you remove someone’s name from a mortgage without refinancing?

In most cases, no, you can’t remove someone’s name from a mortgage without refinancing. That said, you may be able to remove a person’s name depending on your particular financial situation and what your lender’s willing to authorize. When in doubt, speak with your mortgage lender.

Do I have to give my spouse equity in a divorce?

You only have to give your spouse equity in a divorce if a court orders that you do so. Keep in mind, this depends on a number of factors, such as the rules of your jurisdiction and the financial circumstances of the parties.

How do you refinance after a divorce if you have bad credit?

If you’re unable to refinance the marital home in your own name with a current mortgage lender due to bad credit, don’t lose hope. Consider shopping around for other lenders, including Federal Housing Administration (FHA) lenders, who may have lower credit score requirements. You may also be able to have one of your parents refinance the house with you. This allows you to pay your spouse and have your name removed from the mortgage and title.

What if I can’t afford to pay for the house after divorce?

If you’re unable to afford payments on the house after your divorce, you likely have some options. You may be able to: 1) come to an agreement with your former spouse regarding continued joint contributions to the home after the divorce and shared equity in the property as a result, 2) rent out all or a portion of the property to help you meet your payment obligations, or 3) refinance the house with a parent in order to pay your former spouse and remove your name from the mortgage and title. If you’re unable to find any way to pay for the home after divorce, your remaining option may be to sell it. Otherwise, failure to keep up with your payment obligations may result in foreclosure on the property.

Does the husband always lose the house in a divorce?

No, the husband doesn’t always lose the house in a divorce. The distribution of assets in a divorce—including division of the couple’s home—are determined after taking into consideration a variety of factors, which vary from case to case.

How do couples split the house in a divorce?

There are a few methods for splitting the house that a couple might agree to or that a court might order. For example, one spouse might buy out the other spouse’s interest in the home by compensating them for their portion of equity in the property. In other cases, especially when neither spouse wishes to remain in the home, the parties might sell the property and divide the proceeds of the sale between them.

Does the husband have to pay the bills until we are divorced?

The husband doesn’t always have to pay the bills while a divorce is pending. Often, a court will issue a temporary order allocating financial responsibilities, such as payment of certain household expenses, between the spouses until the conclusion of the divorce action. This order takes into account each party’s needs and ability to earn income.

Disclaimer: This article is provided as general information, not legal advice, and may not reflect the current laws in your state. It does not create an attorney-client relationship and is not a substitute for seeking legal counsel based on the facts of your circumstance. No reader should act based on this article without seeking legal advice from a lawyer licensed in their state.

This page includes links to third party websites. The inclusion of third party websites is not an endorsement of their services.

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