Who Gets the House in a Divorce?

Dividing up assets is an important part of any divorce proceeding, and the marital house is usually one of the biggest assets. Individual situations typically determine who will get to keep the house, but the following things usually come into play.

Community Property Laws

In many states, all assets and debts must be distributed equally and equitably after a divorce. When it comes to the house, this usually means that the person who wants to stay in the house “buys out” the other person’s interest in the same. This could be done with cash or with a different distribution of assets that each person deems fair.

Emotional Ties

Emotional ties to the home can also play a role in the decision. When children are involved, the parent who gains primary custody of the children typically gets to keep the home if he or she wants it and can afford it. On the other hand, if the home was someone’s family home, that person might have a greater chance of getting to stay in the home.


While emotions are high during the divorce, it’s important to be practical as well. Owning a home is a big financial commitment that includes the mortgage payment, property taxes, homeowner’s insurance, and all of the associated maintenance costs. If one person clearly cannot afford to keep the home, the court may award the home to the other party or order the home to be sold.

Selling the Home

If an agreement cannot be made, you may be forced to sell the home and split the equity or deficiency if any. You can then use the money you get as a down payment on a new home. Since you’ll be qualifying for the new home on your own, this option may make for a safer arrangement.

The marital home is often a big asset, but it also comes with a lot of financial and emotional baggage. Decide how important it is for you to fight for the home and thoroughly discuss your options with a competent lawyer.

If you're looking for legal representation regarding your divorce, contact Gerkin & Decker, PC Brighton today. From probate lawyers to family law attorneys, we have a skilled team to make sure your legal rights are protected. 

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