Who Gets the House in a Divorce?

by | Jan 17, 2023 | Family Law | 0 comments

In a divorce, one of the most frequently asked questions is what happens to the marital home. The family home is often the most valuable asset, as well as the asset with the most emotional attachment. Determining what happens to the family residence can be extremely emotional, especially when there are children involved, as this was where the family planned on building their lives together.

Many times, spouses are able to agree on how to divide the marital estate. It is usually in the parties’ best interests to come to an agreement rather than leaving it up to a Court. Not only does this avoid the expense and emotional stress of going through a trial, but it allows the parties to keep control over the outcome.
Here are a few ways the family home is settled.

Selling the Home

While the parties do not have to sell the home, if both spouses are in agreement, it will be put on the market. The parties should agree on a realtor and the listing price. If there is any equity left after the outstanding mortgage balance and any other debt attached to the home is paid, the parties shall determine how to split the remaining profit.

If the parties cannot agree on what to do with the home, it is left up to the discretion of the Court. Often judges will order the sale of the home to wrap up any loose financial ends and to cut all ties between the parties. If neither spouse can afford to live there, then it is not sensible for them to be awarded the home. Selling a marital home can be difficult for families as it makes the process feel real and final.


A second option is a house buyout. This is when one spouse releases his or her interest in the home to the other in exchange for cash or the promise of cash to be paid in the future. This is commonly seen when the children’s primary caregiver wishes to remain in the home for the children’s sake or when one party has an emotional attachment to the house. If a spouse wants to keep the marital home, he or she needs to ensure that it is for a good reason, but more importantly, they can afford it. Spouses must balance their wants with the harsh financial realities of life after divorce. Not all spouses can maintain the same lifestyle they enjoyed during the marriage. While they may be comfortable and want to avoid the hassle of moving, it may not be the best financial decision. Being solely responsible for a mortgage, property taxes, maintenance, and utilities adds up quickly. It can put a party in severe financial trouble, especially if they are also ordered to pay spousal and/or child support.

If a party is going to buy out the marital home, the other spouse is entitled to a share of the equity in the marital estate. While the house is typically a marital asset, the mortgage generally is a marital debt. Therefore, equity is determined by subtracting the mortgage from the fair market value. If an appraisal has not been completed on the home recently, it may be in the party’s best interest to order an appraisal or comparative market analysis to determine the fair market value. The value could have increased exponentially in the last couple of years with the current housing market.

It’s important to note that the courts do not divide a marital estate equally, but rather equitably. Once the other party’s equitable portion is calculated, the party receiving the home will need to refinance the property. They can refinance at an amount high enough to pay the other party their equitable portion after the divorce is finalized. However, a party is not required to take out a higher loan to payout the other. The spouse can offset a party’s equity using retirement accounts, bank accounts, or taking on more of the marital debt. Considering the raise in interest rates, this may be a better option.

At Rosenquist Law Office, our family law attorneys understand the legal and emotional costs of determining what to do with a marital home in a divorce. We can help weigh your options and advocate for you once you have made your decision.

Please contact Rosenquist Law Office at (701) 775-0654 or email us at lawinfo@rosenquistlawoffice.com.

The information contained in this article and on this website is for informational purposes only.
This information is not legal advice and should not be relied upon as so.

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