Divorce and the Family Home: Who Will Live There?
Going through a divorce can be a seemingly endless emotional roller coaster. Even after you have waded through the waters of who has custody of the children and how to divide the personal property, an important issue often remains – who gets the family home?
What happens to the family home after a divorce will depend on the family’s specific circumstances. If the spouses can agree between themselves on what should happen to their home, the court will usually accept their decision. However, if the spouses cannot agree, the court will have to decide for them and there are a number of common options courts use, including allowing the parent who has primary custody of the children to remain in the home or ordering the home sold and any profits split. Here we look at some of these options and related issues that the court must address.
If the spouses own the home and have children who are still living at home, the court may favor giving the home to the spouse who will have primary custody of the children, if the spouses can afford to do so. Such an arrangement promotes continuity in the lives of the children as well as in the life of the spouse who will live in the house. Of course, courts decide custody on the basis of the best interest of the children and will not award custody to a parent who seeks custody as leverage for the final award of the house.
What if the spouses can’t afford to keep the house? Then, the court may order it sold and the proceeds divided or perhaps given to one party. Proceeds are usually split after first paying off the mortgage and the costs of the sale – such as commission to real estate agents, transfer taxes, and attorney’s fees. Proceeds will likely be split in the same way the rest of the property was divided, for example, 50/50 or 70/30 depending on the particular circumstances.
In some cases, courts may adopt a middle-ground approach: The spouse who has primary custody of the children is granted the right to live in the house for a certain number of years, such as until the youngest child graduates high school. At that time, that spouse then buys out the other spouse’s interest or sells the house and the couple divides the proceeds.
In another variation, one spouse has the right to buy out the other spouse’s interest in the home for a fixed period of time, such as thirty days. If the first spouse cannot buy out the other spouse, then the second spouse has an equal period of time in which to buy out the first spouse. If neither spouse is able to buy out the other, then the house will be sold and the proceeds divided.
Of course, even after it has been determined that one spouse will remain in the home, there are yet more details to be worked out. For example, arrangements must be made with regard to home-related expenses. A common arrangement is for the party living in the house to pay for the mortgage, property taxes, utilities, and routine repairs. If the spouse who is not living in the house retains an interest in the house – such as a right to a share in the proceeds when the house is sold at a later date – both parties might share in the cost of major repairs.