Who Gets the House?

Divorcing couples should not take action about the disposition of the family house until reviewing all the pros and cons of keeping or offloading the house with qualified family law lawyers who can offer a perspective on the legal and financial issues. In general, a spouse – usually the woman — should have good reasons to keep the house in a divorce, not only because a battle over the house can be an emotionally draining experience, but also because a mistake that can be a giant step toward financial ruination.

In most states, neither spouse can force the other to leave the home even after filing, but continuing to live together in the family house in the midst of a divorce can cause stress and tension for husband, wife and the children. However, moving out first can work against a spouse, not only because some family court judges believe the spouse who stays in the house has a greater interest in the property, but also because the judge may consider that the children are still happily in the family home with the parent who decided to stay.

Rash decisions made in anger or frustration — putting possessions on the curb, destroying property or changing the locks– are destructive actions can lead to criminal charges and escalate into full blown warfare between the spouses. In a divorce, shooting from the hip frequently results in self-inflicted injuries.

During a divorce, mortgage responsibilities remain unchanged. While only one spouse’s name may appear on the title, some states still view the family house as communal property. This can greatly complicate a divorce settlement. For example, California law requires the sale or mortgage of a home to be frozen during the divorce process even if the property is under only one spouse’s name.

The spouse living in the house during the divorce can also have consequences when it comes to spousal and child support. The spouse who vacates may have to temporarily pay the mortgage to keep the property in the black until the divorce agreement is final.

Many times women want to keep the family house because selling it and moving is a life-changing event for young children. School-aged children may be traumatized by a divorce, and being forced to move compounds their emotional turmoil. A child psychologist or family therapist can help parents through these rough seas.

Emotional attachment is understandable reason people want to keep houses. Many spouses become attached to the family house (which they call the family home during happier times) because the happier times are part of high hopes for marriage; hopes that now are only bittersweet memories. After all, even marriages gone south have many good memories. Sadly sometimes one spouse may hang on out of spite, control, vindication, and greed.

The pain and suffering of a divorce often can cloud otherwise sound-judgment. It is easy to see why it is tough to leave, but a person must consider what’s actually best in the long haul. The emotional storm and emotional turmoil of divorce, plus school age children, plus an emotional attachment can easily come together to put a divorced mother in the family house. If the woman is going to fight for the family house, she should make sure she could afford it.

Fractured families need to balance their wants and desires against the abrasive financial realities of life after divorce. That reality is that many broken families are worse off after the divorce than before, and that divorce is often a preliminary to bankruptcy. Most families of divorce are unable to maintain the same standard of living they had before the divorce. A woman whose income is mostly of alimony and child support may not be someone to whom a bank is comfortable offering a loan. Even if she can afford it, a woman may not be about to refinance in her name alone.

Moving is a hassle made worse by the pain and suffering associated with breaking up a marriage, but staying, however attractive, might not be the best financial decision. No matter how attached she is the house where her children grew up, it is critical to throw a cold eye on the finance. A house is a barren asset that pays nothing until it is sold and costs money just being there and occupied. The woman who gives up everything to keep the family house may find she cannot cover the mortgage, property taxes, and maintenance. That serious financial trouble may mean the road to bankruptcy.

A financial advisor can help a person determine whether keeping the house will make her house poor. At the same time, a consultation with an experienced family law attorney can be useful in protecting the legal rights of both spouses. A court can impose sanctions against someone who improperly sells marital property during a divorce.

Many times spouses are able to agree how to divide property, and they should try to negotiate with their spouse. Working directly with a spouse allows both partners to exercise at least some control over their destiny and avoids the costs and emotional stress involved of a court fight. Ideally, the decision regarding the family house should be mutual.

Automatic restraining orders in many jurisdictions prohibit either spouse from selling or mortgaging the marital home during the divorce even if the property is only in one name, so the other spouse may not be allowed to sell or encumber the property without the other spouse’s consent or court approval.

The laws of a particular jurisdiction control how a judge divides the house after divorce. For example, in a community property state like California, judges are required to make sure all community or marital property gets divided as evenly as possible so the court may order a buyout, where one partner swaps the equity in the home for another asset. When the house is financial burden too great for either spouse, the judge may order that the parties must sell it.

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