Dear Reader,
It’s probably one of the most gut-wrenching questions that pops up when a couple decides to part ways. When you’re dealing with a divorce, there’s a mountain of things to sort through emotions, logistics, finances, but the question of who stays and who goes when it comes to the house hits particularly hard.
Why? Because a house isn’t just bricks and mortar. It’s where you laughed over burnt dinners, raised kids, hosted birthday parties, and maybe even argued over what color to paint the guest bathroom. It holds memories and figuring out what happens to it during a divorce can be confusing, emotional, and honestly, pretty stressful.
So let’s talk about it. We’re going to break it all down for you in plain English, no lawyer talk, no fancy lingo. Just the stuff you really need to know.
First Things First: Is the House “Marital” or “Separate” Property?
Before you can even begin to figure out who gets the house, you’ve got to figure out what the house is, at least in legal terms.
There are generally two types of property in a marriage:
- Marital Property (aka joint property): Stuff acquired during the marriage. That includes your income, cars, furniture, and yes, usually the house.
- Separate Property: Stuff you or your spouse owned before you tied the knot, or things you inherited or were gifted just to you.
Here’s the kicker: if one spouse bought the house before marriage, it could be considered separate property. But if the couple lived in it together, made mortgage payments from a joint account, or invested in renovations together? Then it might have transformed into marital property.
The lines can get real blurry, real fast.
Common Law vs. Community Property States: What’s the Difference?
Depending on where you live, the rules on who gets what can vary big time. The U.S. has two main types of property law systems when it comes to divorce: common law and community property.
Let’s break it down.
1. Community Property States
These include places like California, Texas, Arizona, and a few others. In these states, pretty much everything earned or acquired during the marriage is equally owned by both spouses.
So yeah if you bought the house together during the marriage, even if only one of you technically paid the mortgage, it’s considered 50/50.
2. Common Law States
Most of the U.S. falls under this system. Here, property belongs to whoever’s name is on the title or deed unless there’s a good reason to argue otherwise.
For example, let’s say the house is in your name only, but your spouse contributed to the mortgage for years. That doesn’t automatically give them 50%, but a court might consider their contributions when dividing things up.
But We Both Paid for the House. Now what?
If both your names are on the title, that’s a pretty good sign the house is jointly owned. But even if it’s not, courts will still take into account:
- Who paid the mortgage?
- Did either of you use separate funds to buy or maintain it?
- Were there any major renovations paid for together?
- Did one spouse give up a career to raise kids while the other earned money?
Courts want things to be fair. That doesn’t always mean equal, it means equitable. If one spouse sacrifices financially for the benefit of the family, that’s usually taken into account when dividing the house or its value.
Selling the House vs. Keeping It
Alright, so you’ve figured out the house is marital property. Now what?
There are a few typical outcomes:
1. Sell the House and Split the Proceeds
This is probably the cleanest solution. You sell the house, pay off the mortgage (if there is one), and divide the remaining cash. Done and dusted.
Of course, that can take time. And depending on the housing market, it might not be the best move. If it’s not a good time to sell, you might need to consider other options.
2. One Spouse Buys Out the Other
If one of you wants to stay in the house, they can “buy out” the other. That just means they pay them their share of the equity.
Example: Let’s say your house is worth $400,000, and you owe $200,000 on the mortgage. That leaves $200,000 in equity. If you're splitting it 50/50, one spouse could pay the other $100,000 and take full ownership.
Of course, they’d need to refinance the mortgage in their name only. And that’s not always easy. Banks want to make sure the new solo owner can afford the monthly payments.
3. Co-Ownership for a Period of Time
Sometimes, exes agree to hang onto the house together for a while. Usually, it’s for the sake of the kids like keeping them in the same school until graduation.
In these cases, one spouse might live in the house while both still legally own it. They agree to sell it later and split the proceeds down the road.
It’s not ideal for everyone. You need strong communication and a solid agreement in place (hello, legal paperwork!) so things don’t get messy later on.
What About the Kids?
This part can get emotional fast.
Courts always prioritize the best interests of the children. If one parent is getting primary custody, there’s a better chance they’ll also get the house at least temporarily, especially if keeping the kids in their familiar home environment is seen as the healthier choice.
Some parents use what's called a "nesting" arrangement. The kids stay in the house full-time, and the parents take turns living there while keeping separate residences on their off-time.
Yeah, it can get a little complicated. But for some families, it works during a transitional period.
Can Prenups or Postnups Decide Who Gets the House?
Absolutely. If you and your spouse signed a prenuptial (before marriage) or postnuptial (during marriage) agreement that spells out who gets what, that document can override the standard divorce laws.
So if your prenup says, “The house belongs solely to [insert name here] in the event of divorce,” then that’s usually what happens unless it’s found to be unfair or was signed under duress.
Mortgage Headaches: What Happens There?
You can’t talk about the house without talking about the mortgage.
Just because your divorce decree says one person gets the house doesn’t automatically remove the other person’s name from the loan. If both of your names are on the mortgage, you’re both still legally responsible for it no matter what your divorce agreement says.
That’s why refinancing is so important if one spouse is keeping the house. It removes the other’s name from the loan and avoids any future credit drama.
Because seriously no one wants to deal with late mortgage notices from a home they don’t even live in anymore.
Hidden Expenses to Watch Out For
Let’s say you do get the house. Great, right? Maybe. But it’s not always a win if you can’t afford it on your own.
Before you agree to take the house, ask yourself:
- Can I afford the monthly mortgage payment?
- What about property taxes?
- Repairs and maintenance?
- Insurance?
- What if the market dips?
It’s smart to run the numbers with a financial advisor or real estate expert before making any decisions. Keeping the house might sound comforting but not if it becomes a financial trap.
Also, think about less-obvious things. Like, hey are you suddenly the one who has to deal with the air duct cleaning Park City homes need every winter? Those random maintenance tasks that were once shared can quickly become a solo burden.
What If You’re Not Married But Own a House Together?
Welcome to a legal grey zone.
Unmarried couples who buy property together don’t get the same legal protections as married couples. If things go south, you’re not getting a divorce you’re navigating a property dispute.
That’s why having a cohabitation agreement in place is so helpful. If you bought a home with a partner and you’re not married, you should seriously consider writing down what happens to the house if you split. It’s not romantic, but neither is a courtroom battle.
Final Thoughts? Okay, Just One…
Look, divorce is tough. Splitting a life is never easy, and when that life includes a home filled with memories, it can hit extra hard.
Who gets the house depends on so many things: where you live, how the house was paid for, what agreements are in place, whether there are kids involved, and how financially stable each person is post-divorce.
The best thing you can do? Get good legal advice early. And don’t be afraid to talk to a financial advisor, a real estate agent, or even a therapist if this process is wearing you down. (And let’s be real, it wears everyone down a little.)
Now I’d Like to Hear From You!
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Be Blessed,
Danica Joan Dockery, M.Ed.
Executive Director, Kids Need Both, Inc.
