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Who Gets the House in a Divorce?

Divorce can be a complex and emotionally draining process. One of the most challenging aspects is determining what happens to the marital home.

In this video, we discuss who gets to remain in the family home during a divorce and various ways a house can be divided. We also discuss the division process in further detail below.

Ways a House Can Be Divided in a Divorce

If your home is community property, you will have to divide the asset. Ways that your home can be split during a divorce include:

  • Selling the house. The most straightforward way to handle this situation is to sell the house and split any equity between the spouses. This approach provides a clean break, allowing both parties to move forward separately.
  • Buying out the other party. In some cases, one spouse may wish to keep the house. In this scenario, that spouse would typically be responsible for paying the other spouse their share of the equity built up in the house. However, the issue of removing the non-owning spouse's name from the mortgage is something that should be addressed as well.
  • Continued joint ownership. A less conventional but increasingly popular scenario involves the spouses agreeing to continue to own the house for a set period post-divorce. This arrangement can be particularly beneficial when children are involved, as it allows them to remain in a familiar environment.

Home Valuation, Tax Implications & Expert Assistance

Determining the value of the home is crucial in a divorce. Professional appraisers can provide an accurate valuation, helping to ensure a fair division.

It is also important to consider any tax implications associated with transferring property or selling the house. A tax advisor or financial planner can provide valuable guidance in this area.

Additionally, working with a knowledgeable real estate agent or broker can simplify the process of selling the house or transferring ownership. They can provide a realistic market outlook, help set a competitive listing price, and guide you through closing the deal.

Can I Have My Spouse Removed from the Home During the Divorce?

A spouse is not legally required to leave their marital home if the other party simply desires you to leave, even if your name isn’t on the mortgage or the deed. If you and your partner cannot agree to jointly occupy the property and neither party wishes to leave, you can ask the court to issue temporary orders. A judge can then review the evidence and determine which spouse should remain in the home and receive exclusive occupancy rights to live in the home during the divorce proceedings.

However, it is important to note that, in cases involving recent family violence, a spouse can be removed and forced to leave the home if the other party gets protective orders against you. If either party fears violence from their spouse, they can file for emergency protective orders, which can last until permanent orders are issued (if determined necessary at a hearing). For the duration of the protective orders, the respondent will need to vacate the home.

Trusted & Experienced Counsel

Remember, every situation is unique, so it's essential to consult with a legal professional who can provide advice tailored to your specific circumstances.

At Epstein Family Law, our attorneys are happy to help you understand your rights and legal options in the property division process. We can also discuss occupancy of the house during the divorce proceedings and other case-specific concerns you may have.

Call (972) 232-7673 or complete our online contact form to discuss who may get the house in your divorce.

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