Who Gets the House in a Divorce? Real Estate Guide & Overview

Who Gets the House in a Divorce: Simple Explanation

A court determines who gets the house by evaluating whether it is marital property or separate property, the state's property division system, and what arrangements best support financial fairness and (if applicable) child stability. In many cases, one spouse buys out the other’s share, or the home is sold and the proceeds are divided.

States use one of two frameworks for dividing property: community property or equitable distribution. These systems determine how homeownership and equity are handled during divorce.

How Home Ownership Is Determined in a Divorce

To decide who keeps the home, the court evaluates several factors:

• Whether the home is considered marital or separate property
• The contributions each spouse made to the mortgage, upkeep, and improvements
• State law governing property division
• Who has primary custody if children are involved
• Each spouse’s income and ability to afford the home
• The home’s existing equity and outstanding mortgage obligations

Even when only one spouse is on the title, the home may still be partially marital if both spouses contributed financially. Courts may order a buyout or require the home to be sold if neither party can maintain it independently.

Community Property vs. Equitable Distribution

How the home is divided largely depends on the state’s approach to property division.

• Community Property States: Assets acquired during the marriage are typically split 50/50. If the house was bought during the marriage, each spouse generally receives half of the equity regardless of whose name is on the title.
• Equitable Distribution States: Property is divided fairly—not necessarily equally. Courts consider income levels, contributions, financial need, and other factors to determine an equitable outcome.

These systems influence whether one spouse keeps the home, buys out the other, or the house is sold and proceeds divided.

Marital Property vs. Separate Property

A critical step in determining who gets the house is identifying whether the asset is marital or separate property.

• Marital Property: Homes purchased during the marriage or maintained using marital funds. Courts typically divide the equity between spouses.
• Separate Property: Homes owned before the marriage, inherited, or gifted solely to one spouse. However, paying the mortgage with joint funds or improving the home can create shared equitable interest.

If a home is partially marital and partially separate, courts may apportion the equity accordingly.

How Children Affect Who Gets the House

When children are involved, courts often prioritize stability. The parent with primary custody may be allowed to remain in the home, either permanently or until the youngest child reaches adulthood.

In these scenarios, the spouses may agree to:

• Delay selling the home (a “deferred sale order”)
• Share costs until the eventual sale
• Arrange a later buyout of one spouse’s share

The goal is to minimize disruption for children while maintaining fairness between spouses.

Buyouts, Sell-and-Split, and Other Options

• Buyout: One spouse refinances the mortgage and pays the other spouse their share of the equity.
• Sell the Home: The house is sold, and net proceeds are divided based on the court’s allocation.
• Co-Ownership After Divorce: Some spouses temporarily maintain joint ownership for market timing or child-related reasons.

When refinancing, the spouse keeping the home must satisfy lender requirements, including ability to afford the payment and paying any remaining mortgage payoff.

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📚 Related Terms

• Community Property
• Title
• Ownership
• Home Equity
• Mortgage

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