Who Gets the House in a Divorce: Understanding Your Rights and Options

by | Feb 26, 2023 | Selling Advice

Divorce can be a difficult and complicated process, especially when it comes to determining who gets the house. Who will own the property that was once shared between two people?

For many couples going through a divorce, their home is one of their largest assets. It’s often also full of memories they shared together as a family. As such, it’s not surprising that deciding who gets to keep the house is one of the main points of contention in many divorces.

The law surrounding this issue can vary from state to state, so it’s important to know what rights you have before making any decisions.

Whether you’re currently going through a divorce or just want to understand more about how these decisions are made, this article offers an in-depth look at who gets the house in a divorce. We’ll discuss various legal considerations and practical advice for navigating this complicated situation.

Read on to learn more about how courts decide who gets to keep the family home after a divorce.

Determining Who Keeps The House After A Divorce

Generally speaking, when it comes to dividing up property and assets in a divorce, each state has different laws that must be followed.

This means that spouses must consider factors such as who owns the home and who paid for it, how payments are divided if one spouse stays in the house after the divorce, and any other financial or legal implications associated with keeping the house.

In addition to financial considerations, emotions can also play an important role in deciding who keeps the house. For example, if one spouse has been living in the home longer than their partner or has raised children there, they may feel more entitled to stay in the home after a divorce.

Similarly, if one spouse holds sentimental value for certain items within their home or wants them kept safe from destruction during a move-out process – these feelings should also be taken into account when deciding who gets to keep the house.

Ultimately, communication between both parties is key when making this type of decision. Everyone involved should have their say on what feels fair for them and consider all aspects before reaching an agreement about who gets to keep the house after a divorce.

a married couple on the couch fighting and looking upset

Factors Used For Dividing Property In A Divorce

The primary factor is usually which spouse is listed as the owner on title documents. Generally, if one person’s name is on the deed or mortgage papers, they will be awarded ownership in a divorce. However, if both spouses’ names are on these documents, things can get complicated.

The court will consider other factors such as income and financial contributions made by each spouse during marriage.

Courts may also factor in any special circumstances such as health issues or special needs of either party when determining who gets the house in a divorce. If one partner has a disability or requires extra care due to illness or age, this could make them more likely to be awarded ownership of the property.

Overall, there are many factors that can influence which spouse ends up with the house after a divorce. It’s crucial for divorcing couples to have an understanding of how each factor affects their chances of being granted ownership so that they can plan accordingly and make informed decisions about their future living situation.

Dividing Marital Property In A Divorce

In general, any asset acquired during the marriage is considered marital property and must be divided in a fair and equitable manner.

The court will take into account a variety of factors when deciding who gets what in a divorce. These may include each spouse’s financial contributions, the length of the marriage, each spouse’s economic situation after the divorce, and even potential tax implications from certain decisions. The court will also consider any children involved in the divorce in order to ensure that their best interests are taken into account as well.

In some cases, both spouses may agree on how to split up the marital assets without going to court. This can save time and money by avoiding a drawn-out legal battle over who gets what. However, if no agreement can be reached, then it will ultimately fall on the judge or arbitrator to decide how to fairly divide all of the assets between both parties. They will use all available evidence to make sure that both sides receive an equitable share of what was acquired during the marriage.

How A Court Decides Who Gets The House In A Divorce

In most cases, courts decide who gets the house based on the best interests of both parties.

Factors such as each spouse’s financial situation, their contributions to the marriage, and any children involved are all taken into account. Courts may also consider any prenuptial or postnuptial agreements when deciding which party will receive the marital home.

Courts generally have broad discretion when awarding real estate during a divorce. In some states, courts may even order one spouse to buy out the other if they choose not to sell the home. The court may also award one spouse with exclusive possession of the property until it can be sold or until other arrangements are made.

Whatever decision is made by the court, it is essential for each spouse to get legal advice from an experienced divorce lawyer who understands their state’s laws regarding dividing marital property in a divorce so that they can protect their rights and interests throughout the process.

a couple talking to a divorce attorney holding divorce papers

Selling The House And Dividing The Proceeds After Divorce

Once a court has decided who gets the house in a divorce, there are several options for how the two parties can proceed.

One option is to simply sell the house and divide the proceeds between them. This may be an ideal solution if both parties want to move on from the property and start fresh with their own lives.

The biggest benefit of this route is that it allows both parties to have a clean break from any associated memories or emotions with the house. It also provides each party with an equal share of funds they can use to invest in new properties or other investments. Another advantage is that it removes any potential future conflict over ownership of the house after the divorce has been finalized.

The downside is that selling a home can be time-consuming and expensive, as real estate agents must be hired and fees paid out for appraisals and inspections. There may also be some financial losses due to market conditions at the time of sale, which could leave one or both parties feeling like they did not get full value for their investment in the house.

Property Division Agreement In A Divorce

The property division agreement in a divorce is an important step in determining who gets the house.

It is a document that states which spouse will get the house, as well as any other assets or debts associated with it. It’s wise to consult a divorce attorney before signing such an agreement, as it can have significant financial implications for both parties.

Division of property during a divorce is based on what’s fair and equitable for the parties involved. In general, the court considers factors such as length of marriage, income, and standard of living when determining how to divide assets and liabilities. The court may also consider any prenuptial agreements between the spouses before making a ruling about who should receive what.

It’s important to note that if one spouse decides to keep the family home, they will likely be responsible for refinancing it in their own name or finding another way to pay off the existing mortgage debt. Likewise, if one spouse receives cash from selling the house and dividing the proceeds after divorce, they are responsible for paying any existing taxes associated with those funds.

Impact Of Divorce On Mortgage And Home Equity

The first thing to consider is how the mortgage will be handled. In most cases, the court will allow one party to stay in the house while requiring that person to refinance or take over the existing loan.

This means that they will have to make sure they can afford the payments on their own. Alternatively, it may be possible for both parties to keep ownership of the property and continue making joint payments on it until it is sold or refinanced.

Another factor that needs to be taken into account is home equity. If significant equity is built up in the home then this should also be split between both parties during a divorce settlement. This could mean that each person gets half of any proceeds from selling the home, or one party might receive a lump sum payment from their former spouse as compensation for their share of the equity.

Tax Implications Of Divorce And Property Division

The Internal Revenue Service (IRS) will take different approaches to taxes depending on whether an individual is married or single. If a couple decides to file jointly during their divorce proceedings, they must still do so even if only one spouse is contributing income. However, filing separately may be a more beneficial option since each partner can declare their own income and deductions without being held responsible for the other’s taxes.

Additionally, when dividing property in a divorce settlement, it’s important to consider capital gains tax liabilities. This means that any profit made from selling shared assets will be subject to capital gains taxes — which vary from state to state — and should be divided between both parties accordingly. In certain states, selling a home may also incur transfer taxes which need to be taken into consideration before signing off on the agreement.

Consulting with an accountant or lawyer prior to signing any legal documents can help ensure that all tax implications are properly addressed during the divorce process.


When it comes to who gets the house in a divorce, there are a number of factors that must be taken into consideration. Generally speaking, if both spouses have an ownership interest in the house and have contributed to its purchase, courts will typically award it to one spouse or order that it be sold.

If one spouse did not contribute to the purchase of the home, then it is more likely that the other spouse would keep the house. Prenuptial agreements can also determine who keeps the house in a divorce, but their enforceability may depend upon state law.

If you’re considering selling your home and need a fast and reliable solution, HomeBeacon can help sell your house for cash after your divorce as an option. Our team of experts will work with you every step of the way to ensure a smooth and stress-free process. Contact us today to find out how we can make your home-selling experience a positive one.

Frequently Asked Questions

Does Co-Ownership Of A House Affect Who Gets The House In A Divorce?

If two people own a home together before entering a divorce, then it’s likely they will both retain ownership of the property even after the separation. This means that each party has an equal right to remain living in the home, or to sell it and divide any profits accordingly. However, if one person has contributed more financially towards the purchase or maintenance of the house than the other, then this could affect which party is granted full ownership by a court ruling.

In certain circumstances, such as when there are children involved or if one spouse has been forced out of their role as primary caretaker for any reason, it may be necessary for courts to award full ownership of a residence to just one person.

What Happens If One Spouse Did Not Contribute To The Purchase Of The House?

In many cases, if one spouse does not contribute to the purchasing of a house but instead is responsible for other costs associated with running a household such as utilities or bills, then they may be entitled to some equity in the home. However, this depends on individual state laws regarding property division during divorce proceedings. Generally speaking, courts will look at contributions made by both parties during marriage when determining who gets the house in a divorce.

Can One Spouse Buy Out The Other In A Divorce?

It’s also possible for one party to buy out their former partner’s share in a divorce if both parties agree. This process is called “equitable distribution” and refers to how marital assets are divided between spouses in a divorce settlement. Depending on state laws, certain assets like homes may be considered marital property and must be divided equitably between both partners. In these cases, one party may choose to buy out their former partner’s share so that they can keep sole ownership of the home after divorce proceedings have concluded.

Can A Prenuptial Agreement Determine Who Keeps The House In A Divorce?

Prenuptial agreements are legally binding contracts that must be signed by both spouses prior to marriage. They typically address issues like alimony, child custody, and other important topics that may come up in the event of a divorce. In addition to these components, many couples also include provisions specifying who will keep the house in case of a separation. This can provide clarity and peace of mind for both parties as they know what will happen with their shared property if their marriage does not work out.

What If The Home Is Underwater, Can The Court Still Award It To One Spouse?

If the home is underwater, meaning that it’s worth less than what is owed on it, the court may still award ownership to one of the spouses, depending on their financial situation and other factors. The court might opt to give ownership to the spouse who has fewer assets outside of the home or who will suffer greater financial hardship if they don’t get ownership of it.

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