Deciding to exit a marriage comes with a thousand questions and what-ifs. Often, the first question is, “who gets the house in a divorce?” This can be a complicated question heavily dependent on facts.
The Court Considers Affordability
When answering the question of who gets the house in a divorce, if the parties cannot agree the Court must consider several things. This includes which party can afford the home, title, financing, purchase information, whether the parties have children, among other factors. Often though, the financial positions of the parties are determinative of this issue. However, the Court is limited in what it can award. Absent an agreement; the parties may be forced to sell the home. This is a prospect that the parties may not even want. That being said, regardless of who may keep the home, both parties are entitled to their equity or value in the home. This could mean a cash payout or the value in keeping the home and remaining equity.
When Both Parties are on the Mortgage & Deed
When both parties are titled on the deed and the mortgage, it may be necessary to either sell the home or refinance it so that the non-homeowner spouse is not left “holding the bag” on a mortgage. Without doing so, the mortgage would still list the non-homeowner spouse to his/her detriment, even if the deed was transferred. This, in essence, would mean the party cannot sell the home but would be responsible for the mortgage. In addition, the party’s credit may be affected. The mortgage from their marriage could prevent them from obtaining financing for their own home, or otherwise negatively impact their credit and debt to income ratio.
Refinancing the House
To avoid this, a refinance would offer the parties the ability to remove one spouse from the mortgage and may allow the parties to “cash in” some equity to buy the other spouse out of their interest in the home. The first question in this scenario is whether one or both parties would qualify for a refinance. For this reason, parties must be strategic when one or both applies for a refinance. This is especially true while they are also divvying up other marital debts.
If both parties are on equal footing financially, the question becomes one of equity. Then, ultimately it is within the Court’s discretion to decide which party can keep the home. Often, the Court will consider whether the parties have children, whether the parties are exercising equal time sharing, or if one parent has majority time sharing, and where the children attend school. There are no bright-line rules on this issue, and it is up to the Court’s discretion.
Have More Questions About the House in a Divorce?
If you have more questions about who can get the house in a divorce, you may contact the Heskin Martinez Law Group. We have almost 40 years of combined Family Law experience and are dedicated to our clients. Use the contact form below or call us immediately at 407.403.5990.
