Your house is probably your biggest asset. It is for most people. Beyond the financial importance of your house, there are strong emotional ties to your home. It’s where your family lives their lives; where your children sleep. That’s why it is so difficult to decide who gets the house in a divorce.
The first thing that must be analyzed when deciding who keeps the house in a divorce,is when did you buy the house. If you bought a house before getting married it may not be considered marital property. It could be considered separate property. If it is separate property, generally, whoever bought the house keeps the house. However, a judge can divide separate property if it is equitable to do so.
But it isn’t always easy to determine if it is marital property. Even if you bought the house prior to the marriage, a court could still decide that it is divisible. The Court will look to see:
- if the home increased in value during the course of the marriage,
- if the non-owning spouse helped to improve or maintain the home,
o Did that person pay for a new roof, or heating system?
- if the non-owning spouse’s funds were used to pay the mortgage.
If you used funds you had prior to the marriage to pay for a down payment, you may receive a credit for that even if the property is considered the marital home.
Who Gets to Stay in the House During a Divorce
A common question is, “[C]an I kick my husband out if I own the house?” A Family and Probate Court Judge can order one party to have sole use of the marital home during the course of the divorce. These situations are usually reserved for instances of domestic abuse and/or restraining orders. Also, a judge can order one party to leave the home if there is a danger that you or your children will be harmed.
Awarding House as Permanent Order
Awarding the home to one party or the other is usually the biggest property division issue in a divorce. In making that decision, a judge will look to several factors including:
- Length of the marriage,
- Conduct of the parties during the marriage,
- Age and health of the parties,
- Occupation and income of the parties,
- Opportunity of each of the parties to earn income,
- Present and future needs of children,
- Contribution of the parties to the acquisition and preservation of assets and contributions as a homemaker.
Let’s take a look at some of these factors more closely:
Conduct of the parties during the marriage: A judge may consider how each spouse acted during the marriage when awarding assets. Those actions could have affected the marital estate. For instance:
- If one spouse had a gambling problem and lost a lot of money,
- If one spouse gave away assets without the other spouse knowing,
- If one spouse contributed more to increasing the marital estate.
Age and health of the parties: The age and health of the parties to a divorce can have an impact on how property is divided. If one party is older or in poor health, that may prevent them from being able to acquire property in the future. Therefore, a judge might lean their way when awarding the marital home.
Needs of the children: Who gets the house in a divorce with children? A court will consider the needs of your children when awarding a marital home. Judges want to keep children in their home if possible so as to avoid additional trauma. So whoever gets custody of the children will have an advantage in getting the house.
The divorce court can order a deferred sale of your home. This allows the children to stay in the home until they reach a certain age. Although possible, deferred sales are rare.
Basically there are four outcomes when dealing with a dividing a marital home:
- One spouse buys out the other,
- The house is awarded to one spouse,
- You and your spouse continue to own it jointly, or
- You can sell the house and divide the proceeds.
For financial reasons, selling the house is the most common.
Whether or not one spouse can buyout the other’s interest in the marital home depends on each party’s financial situation. Anyone buying out the other must be able to come up with the funds to do so. That person typically has to get a mortgage in his or her own name, which is often difficult to do. Oftentimes, two parties together must pool their income to qualify for a mortgage.
If one party is awarded the house, there will likely be an offset. An offset means that since that spouse received the value of the equity in the home, the other spouse should receive more from other assets. That’s assuming there are enough assets to make that offset.
If You Sell the House
If you sell the house, several obligations must be paid. Such obligations include:
- The mortgage,
- Home equity loans,
- Real estate broker fees,
- Closing costs, and
Any equity in your home will generally be split between you and your spouse. Because Massachusetts isn’t a community property state, the split doesn’t have to be 50/50. It must be equitable. The Court will look to several factors, such as:
- Who contributed toward the purchase and maintenance of the home,
- How are other marital assets being divided,
- Were there any liens on the house attributable to just one party.
What If You Have to Sell a House in Divorce With No Equity?
You may have to sell the house at a loss. That is to say, you owe more money than the house is worth. In that case, the debt needs to be split as well. Again, that could be an even split or one party may be ordered to take a larger portion. One person could be on the deed but not the mortgage.
Dealing with a house in a divorce is complicated. There are many factors that must be taken into consideration. The fact that it is usually the most valuable asset coupled with the emotional ties to the home make this issue particularly thorny. You should certainly consult a qualified Massachusetts divorce lawyer for advice.