Commonly Asked Questions: Who gets the house in a divorce?

A very common question that is asked by separating couples is: who gets the house in a divorce?

The answer to this is: it depends.

Be sure to check out our other blog post: Do I lose my rights if I move out of the family home?

Firstly, it depends on who wants the house. If one person clearly wants the property and the other person does not, then the person who wishes to retain the property will generally be permitted to keep the home and pay the other person out for their share of the equity in conjunction with the other property division.

Secondly, it depends on who can afford the house. While both parties may want to keep the house, the decision as to who will keep the house might come down to who can afford the home. For most people, the family home will have a mortgage tied to it. The person who wishes to keep the home will generally have to be able to prequalify for the mortgage in their sole name, and also be able to afford the payout of equity owed to the other party.

Thirdly, it depends on whether both parties want the house and can qualify for the house. In cases like this the court will generally do one of two things. Option 1- the court will order the home to stay with the person who values the home at the highest dollar amount. This is the highest bidder approach. Option 2 - if both parties want the home, the court will take a King Solomon approach, split the baby in half, and order the home to be sold and proceeds divided in accordance with the other property division.

Fourthly, it depend on if neither party wants the house. In this case, if neither of the parties want to keep the house then it is standard protocol for the house to be listed for sale and the proceeds divided in accordance with the other property division.

Determining who keeps what in a separation often comes down to the finances of the parties and negotiation strategies.

Family property division and negotiating a fair settlement of property can be a daunting task. Our lawyers have experience negotiating excellent settlements of family property. If you have questions or concerns, or would like to be teamed up with one of our professional negotiators, you can start the process by filling out the form here.