We amass many assets and liabilities throughout the course of a marriage, though generally none as large as a house. A mortgage is likely the largest investment any of us will make. Divorce brings many uncertainties, chief among them being what happens to the house. If children are involved, the family home may possess precious memories. Neither party may be willing to give it up, but selling may not be an option. Learn what happens to a house in a divorce and how judges handle disputes over property.
How California Handles Division of Real Estate
Each state has its own set of laws that govern the distribution of assets following dissolution of marriage. Generally, if one spouse bought the property before the marriage, it remains the property of that spouse in the event of a divorce. However, if that property served as a family home while married, it may be property subject to equitable distribution (especially if that property was a source of income).
California is a community property state, meaning that the assets both parties accrue during the course of the marriage are joint property in the eyes of the law. In the event of a divorce, that property should be distributed equally. Obviously, a judge can’t give each spouse joint custody of a house. What, then, are the options?
While California is a no-fault state, it may use fault as a determining factor in who gets what. A judge might award one spouse the house if the other committed adultery, for example. However, these decisions can vary greatly depending on the individual judge.
Dealing With a Home – Without the Mess
Divorces are, by their very nature, messy affairs. It’s rare to find a couple who splits without a single mishap. The home is one of the issues couples squabble over most. Perhaps the easiest way to establish a clean break is to sell the house and split the equity. This may be a good option if:
- The house has appreciated
- The house is paid off
- Neither spouse is committed to keeping the house
Unfortunately, one spouse may want to hold onto the house for emotional reasons – it’s where their children were born, for example. Selling the home is the cleanest route; the only matter left is deciding how to split the proceeds, and this is possible through mediation. Sometimes, even this can become contentious. A judge may ultimately award more proceeds from the sale to one party if that party put significantly more into it: For example, one spouse completed a renovation or kept the books on an income property.
When Both Spouses Want the House
Deciding which spouse gets the house is easy if one member in a marriage is willing to walk away, but what happens when both parties want to keep it? A judge will ultimately make a decision in this case, depending on what is fair and equitable to both parties. For example, if you want to keep the house, you may have to concede other things, like the cars or even the family pet.
Before going to war for the family home, you should stop and think about why you want it in the first place. Are you emotionally attached to it? Is it out of spite? Is it the house you would have purchased before you were married? Prioritize carefully, and decide if the house is worth going to war. A family law attorney can help you decide on your priorities and negotiate the best deal for everyone.
Your house may be a contentious issue in your divorce, but with the right frame of mind, you’ll handle the situation with efficiency and grace. If keeping yours is top priority, tell your family law attorney.
