Nicole Mazzola

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nicole@aare.org

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How is Property Divided When Couples Divorce?

October 4, 2018

Divorce is a highly unfortunate situation, but it can become extremely complicated when there are joint assets involved that need to be split up. More specifically, the family home will need to be dealt with, which can be a sticky situation in the case of a divorce.

What can happen to the family home in the case of a divorce? How is the property divided between both spouses?

It’s a common question that divorcing couples ask, especially when there may be some disagreement about how exactly to deal with the property so that each party walks away with what they rightfully deserve.

How Was the Property Used, and When Was it Purchased?

When it comes to determining how a property will be dealt with in the case of a divorce, the date that the property was purchased matters. If one of the spouses bought the home before getting married, the property could then be considered a pre-marital asset that would belong only to that spouse.

But if the home was considered the family home where the couple lived while they were married, the property could then be considered a marital asset. In this case, the home could be divided between both parties.

Rules governing property division during a divorce can vary from one state to another. But most states allow parties who purchased properties before marriage to maintain exclusive ownership rather than subjecting the home to being a marital asset. There doesn’t necessarily have to be a prenuptial agreement in place for this to happen, either.

The caveat is that the home must have only been used for the benefit of the owner. If that home is shared with the other spouse, then the home will likely be considered the property of both spouses, including the one who was not part of the purchase before marriage.

Any homes that are bought after marriage or are used as the family home are typically considered to be an asset whereby both spouses have a stake in it. In this case, the home would have to be split equitably between the two.

What if Both Ex-Spouses Want to Keep the Home?

In many cases, both parties will simply want to sell the home and split the proceeds of the sale equitably. While this doesn’t necessarily mean that the proceeds will be split 50/50, this is most often the case.

But there are other cases where both or even one of the spouses wants to keep the home. What happens in this case?

When one of the spouses wants to keep the home, the situation can become more complicated. In the simplest situation, the spouse who is willing to part with the property will simply buy the other party out. In this case, the spouse who is not keeping the home would have to be taken off of any mortgages, deeds, the title, and any other liabilities or rights associated with ownership.

But if both parties want to keep the home, that’s where things can get pretty sticky. In this case, the courts would have to get involved. Usually, one person will be granted ownership, but at a cost.

For example, other things that the person might want to keep may have to be surrendered in order to retain ownership of the family home. This is done to ensure that both parties are granted equitable assets when splitting property up.

Exclusive occupancy rights can also be given to one spouse for safety purposes while the divorce is taking place. The courts can also give orders of protection, which can force the spouse who is not allowed to live in the home any longer to stay away from the property.

A judge can also order that the home be sold. But if there are children involved, the court may allow the sale to be delayed to allow the parent with custody to remain in the home until proper arrangements have been made. The judge may also appoint the house to one of the spouses, which would be decided after all factors that affect equitable distribution have been considered.

It’s always best to try and resolve the situation without having to drag it through the courts.

The Bottom Line

Dividing up the proceeds of the family home in a divorce setting is usually fraught with issues and complexities that may be best dealt with when lawyers are present. There are so many intricacies involves in the splitting of marital assets – including the family home – when a divorce is imminent.

Your best bet is to consult with a lawyer experienced in these types of unique situations to get the best advice and guidance going forward.