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Who Gets the House in a Divorce?

When the division of property is a point of dispute in a contested divorce, the marital home can be a big point of contention. When it is – and when divorcing parties are unable to come to an agreement about who gets the home, it will be up to the family court to resolve the dispute and determine who gets the house.

Uncovering more about aspect of the division of property, the following answers some common questions about issues surrounding the marital home in divorce.

Should I Move Out of the Marital Home during Divorce?

It depends on your situation, as well as your goals in divorce. Generally:

  • You should move out if your health, safety and/or wellbeing are threatened by staying the home and/or if you do not want to (or care to fight for) the marital home.
  • You should not move out if you want to preserve your claim to the marital home and/or if moving out will disrupt the wellbeing of your children.

An attorney at Burnham Law can review your circumstances and provide more specific advice regarding whether it’s in your best interests to move out or stay in the marital home during your divorce case.

How Does the Court Decide Who Gets the Marital Home?

A family court judge will be focused on making a decision that is “fair and equitable” when it comes to figuring out who gets the marital home. To make a fair and equitable decision regarding the marital home, the judge will consider factors like (but not necessarily limited to):

  • The economic situation of spouse
  • Each spouse’s wishes regarding the home, as well as who is currently living in the home
  • The financial (and/or other) investments each spouse has contributed to the home
  • The division of parenting time (i.e., the custody split)
  • How other marital assets have already been divided
  • Whether there is a valid prenuptial or post-nuptial agreement (and, if so, whether it contains valid terms related to who gets the home in divorce) – If a valid pre- or post-nuptial agreement has valid terms regarding the house, the court will uphold these terms (which may award the home to one party, require the sale of the home and a division of the proceeds, etc.).

Should You Fight for the Marital Home?

This can be a very important question to answer in the initial phases of divorce because it can help you avoid unnecessary conflict and focus on the issue(s) that matter most – and that will best serve you in life after divorce. To start figuring out whether you should (or want to) fight for the marital home in divorce, ask (and answer) these questions:

  • Will I be able to afford property taxes (with a single income)?
  • Will I be able to afford major repairs (on a single income) if or when they arise?
  • Do I need the space or is it time to downsize?
  • Will having the home cause more headache, stress and/or debt than I can reasonably take on in my life after divorce?

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Partner - Domestic Relations (Arabic Speaking)


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