More to Consider in Property Division in Divorce

Who gets the house?

The house is an important issue for many families going through divorce.  Generally, the house is considered a marital asset if it was purchased during the marriage.  It does not matter whose name is on the deed or mortgage.

There are some exceptions that come up from time to time.  For example, you may have a claim for contribution if you owned a house before marriage and later added your spouse’s name to the deed.  There are always exceptions to the rule.  That is why you should discuss the specific facts of your case with an attorney.  Here we will address the general issues that apply to most cases.

What if both spouses want the house?

The judge will consider the reasons why each party wants the house.  An important factor to consider is where the children will be spending the majority of their time.  Is it in the best interests of the children that they stay in the family home for school or emotional reasons?

Also, who can afford the house?  It is much more expensive to operate two households than one.  Can one spouse afford the house on a sole income?  The court can consider whether the spouse will be receiving maintenance and/or child support.

The judge may award the house to one spouse.  In other cases, it may be that only one spouse is interested in keeping the house.  Typically, the spouse who is awarded the house is responsible for the mortgage, taxes, insurance, and utilities.

Sale of the House

It is also possible that the house will be sold.  In that situation, we need to consider who will pay for the house while it is for sale.  We also need to address how any proceeds or deficiency will be apportioned to each spouse.  The law provides that the proceeds or deficiency be divided equitably.  It must take into account the income and resources of the parties as well as the other property and debts they will be receiving in the divorce.

What happens with the mortgage and the deed?

If one spouse retains the house, usually that spouse will need to take steps to get the mortgage and deed in his/her sole name.  That may mean refinancing the mortgage or assuming the mortgage depending on what the mortgage bank will allow.  Sometimes arrangements can be made to allow for additional time or exceptions when credit is an issue.

The other spouse will need to sign a Quit Claim Deed releasing any interest in the property.  The spouse retaining the property should consult with a title company regarding title insurance after a divorce.

Content contained on this site is for informational purposes only and should not be considered legal advice. You should consult an attorney of your choosing to discuss your particular case and to obtain legal advice specific to your situation.

Contact us if you are facing a divorce where property disposition will be an issue.  We have the knowledge and experience to vigorously fight for you.