Divorce can be one of the most emotionally challenging events in a person’s life — and deciding what happens to the family home often adds another layer of complexity. For many couples, the home represents more than just property; it holds memories, stability for children, and significant financial value. So, who gets the house in a divorce? The answer depends on a variety of factors, including state laws, the nature of the property, and the couple’s individual circumstances.

Is the Home Marital or Separate Property?

The first step is determining whether the home is marital property or separate property:

• Marital Property includes assets acquired during the marriage, regardless of whose name is on the title.

• Separate Property typically refers to property one spouse owned before the marriage or received as a gift or inheritance during the marriage.

If the home was bought during the marriage, it is generally considered marital property and subject to division. However, if one spouse owned it before the marriage but both contributed to its mortgage or upkeep, it may become commingled and also subject to division.

Equitable Distribution vs. Community Property

How the home is divided largely depends on the laws of your state:

• Equitable Distribution States (the majority of states) divide property fairly — but not necessarily equally — based on factors like income, contributions, and needs.

• Community Property States (like California and Texas) generally divide marital assets 50/50.

Options for Dividing the Family Home

Couples have several options when it comes to handling the family home:

1. One Spouse Keeps the Home

One spouse may choose to “buy out” the other’s share of the equity. This typically requires refinancing the mortgage in their own name.

2. Sell the Home and Split the Proceeds

Selling the home is often the most straightforward option, especially if neither spouse can afford it alone. The proceeds are then divided according to the divorce agreement or court order.

3. Co-Ownership After Divorce

Some couples choose to retain joint ownership temporarily — often until the children reach a certain age. This can provide stability but requires strong cooperation and a clear legal agreement.

Factors Courts Consider

When the court must step in, it may consider:

• Each spouse’s financial situation

• Custody arrangements (courts may favor the custodial parent staying in the home)

• Emotional attachments and needs of children

• Contributions each spouse made to the home (financial and non-financial)

Tax and Mortgage Considerations

There are important financial implications to consider:

• Capital gains taxes may apply if the home is sold and the profit exceeds the exemption limits.

• Mortgage liability doesn’t automatically transfer in divorce — both spouses may remain legally responsible unless the loan is refinanced.

Get Legal Guidance Early

Dividing a home during divorce can be complex and emotionally charged. A qualified family law attorney can help you understand your rights, evaluate your options, and protect your financial future.

Ty Zdravko practices law as a divorce attorney, and family law attorney in Palm Harbor, Clearwater and the surrounding area.

For more information, visit our website at www.divorceboardcertified.com
or call (727) 787-5919.