Who gets the house in a divorce?

Going through a divorce can be a tough experience for both parties. Beyond the emotional side of things, there are many legal steps involved in dissolving a marriage. The most stressful thing is figuring out who gets the house.

Homes are the biggest purchase you'll make in your lifetime. In most cases, couples will pool assets and merge their finances to get into the home of their dreams. You buy a home as a unit, but you can't split a house in half after a divorce.

So, how does property division work, and who ultimately gets the house?

A brief introduction

In both the United States and Canada, a divorce is the legal termination of a marriage as decreed by the courts. That sounds simple enough. But when you look at how many facets of a couple's life are intertwined, ending a marriage becomes increasingly complex. The property you buy as a couple belongs to both parties. Your home, for example, is a joint purchase.

Both sides retain ownership. Dividing personal property is relatively straightforward. But with a high-valued property like a home, courts usually have to intervene, focusing on equitable division of the assets.

Understanding property division in divorce

Property division in the United States and Canada works similarly. However, it's important to note that laws vary between states and provinces. In Canada, the Divorce Act is federal law and applies nationwide. Even still, provinces set laws to govern how the divorce process works. In the United States, each state independently manages divorces, and there are no federal constitutional laws surrounding it.

Generally, courts will look at two types of property. The first is separate property, covering assets acquired before marriage. The second is marital or “community” assets acquired during marriage. During divorce proceedings, it's the marital assets (and debts) that usually undergo equitable division. But depending on what jurisdiction you're in, certain property acquired independently during the marriage might not be part of property division if the other party doesn't lay claim to it.

Courts typically approach property division with a 50/50 split in mind. So, how do you split a home?

In most cases, courts will grant a home to one party, granting other assets to the other party to make the arrangement more equitable. This process can be difficult, and many couples hire lawyers to plead their case for who gets the house.

But divorcing couples who want to go through an uncontested divorce can work things out more amicably. For example, one person may agree to pay half of the home's remaining value to keep it. Alternatively, parties can enter into a co-ownership agreement or choose to sell the home and split the proceeds.

In cases where parties can't agree to terms, courts may order the sale of the home before dividing the profits evenly.

Contributing factors

A 50/50 split is the most straightforward approach to property division. However, divorces are rarely as simple or direct as that. Courts consider many factors if the divorce calls for more unbalanced division.

These can include:

• Financial circumstances: The economic footing of each party goes into account during property division. For example, courts may award the home to one party if the other has better financial standing and more earning potential.
• Length of marriage: Generally, longer marriages change how courts distribute assets. That's especially true if one spouse earns more than the other.
• Spousal support: If the divorce involves spousal support, courts may take the amount into account when dividing assets.
• Children and custody issues: Child custody issues complicate property division. Courts often grant the house to the spouse who retains custody to minimize the divorce's impact on the children.
• Sacrifices during the marriage: Courts will consider any sacrifices one spouse made to support another. For example, it's common for one party to give up educational or career opportunities.
• Marriage contributions: Courts can also look into spousal contributions during the marriage, including homemaking or child care.

Who typically gets the house?

Contrary to popular belief, there is no definitive rule on who gets the house.

Courts will divide the assets up as equally as possible. Unless divorcing couples can come to an agreement about the house and use other assets or do a buyout to make the division equitable, there's a good chance that courts will order the couple to sell the home and divide the assets.

The truth is that divorces are far too varied and complex to say which party gets the home. It all depends on the facts of the marriage and divorce. Fortunately, courts take many factors into account and take equitable division seriously. Courts are there to make the final decisions if necessary, but it's always best for divorcing couples to attempt to figure things out on their own to prevent costly proceedings.

Potential scenarios and legal options

Many unique situations could lead to one spouse getting the house over the other.

The most common is whenever there are kids involved. Dependents can make divorce proceedings messy and complicated. After custody agreements go into place, courts often give the house to whoever has custody of the children. The goal in these cases is to make the divorce easier on the dependents, ensuring that the dissolution doesn't interfere with their education and upbringing.

A house may also go to a specific spouse if there are considerable differences in financial standing between the couple. For example, one spouse may have been the sole “breadwinner” while the other was a homemaker responsible for raising children. In that case, one spouse has the means to continue supporting themselves financially while the other may have to enter the workforce for the first time in decades. Courts might give the home to a spouse more likely to struggle post-divorce.

Those are just two examples. No matter the situation, parties have ways to contest the distribution. If the parties don't agree on property division, lawyers and mediators can get involved. That's not ideal, as court proceedings can get costly. But when it's a home at stake, it may be worth getting the courts involved so that you can plead your case.

Practical steps and expert advice

If you're going through a divorce, the best thing you can do is speak with your spouse to discuss the division of your assets.

Whether or not that's possible depends on the situation. Either way, it's wise to seek assistance from a divorce attorney. An attorney may or may not get involved, depending on how amicable things are between you and your soon-to-be ex-spouse. But having an expert's guidance can make a difference.

Attorneys can help you understand and navigate your jurisdiction's divorce laws, giving you more insight into your rights and potential avenues for getting through the property division stage.

Most lawyers will agree that one of the first things you should do is identify your assets and liabilities. Work with your lawyer to determine how to classify your property and understand its value. Then, you'll need to discuss your role within the marriage.

Was one spouse responsible for making mortgage payments? What did you contribute to the marriage? How is your financial situation compared to your spouse's?

The answers to those questions matter and can dictate how you will proceed.

Learn more with Nobul

Divorces aren't easy to get through, and determining who gets the home can be one of the more complicated facets of your marriage's dissolution. No marriage and divorce are the same. But understanding the laws governing divorce and taking steps to protect yourself can make all the difference.

If you're going through a divorce and need to learn more about selling your home, head to Nobul. Nobul is a platform for buyers and sellers. We offer many valuable resources for people like you. Whether you're still learning about your options or need to connect with a professional real estate agent to sell your marital home, Nobul has what you need.