Who Gets the Family Home after a Divorce?

  • 08 28, 2021
  • Irwin & Irwin
  • Divorce

When a divorce is being experienced, the splitting up of property can be one of the most difficult parts of the situation. Determining who owns what after two lives have been combined for years can be highly difficult and emotionally draining. In many divorces, the most significant asset that must be divided between the former spouses is the marital home.

In this article, we will explore the various factors that impact who gets the family home after the divorce and how a divorce attorney in California might help you achieve a more equitable and advantageous splitting of resources following your divorce.

What kind of property is the marital home?

In California, property in a marriage is divided into separate property, community property, or a combination of the two. The property that is separate is taken by each respective spouse following the divorce. Separate property might include an inheritance given to one spouse by their parents in which only that one spouse is named, or the money that spouse had saved up during their pre-married life and kept in a separate bank account. Separate property can be easily classified as such and stays with its rightful owner upon divorce.

The other main type of property is community property. Community property is that which was acquired during the marriage and/or with shared resources, and the spouses share ownership in the community property equally. The most common – and significant – form of community property within a marriage is the family home. The family home is community property if it was purchased during the marriage, and without contracts to specify otherwise, spouses generally own the family home equally.

If the family home is community property, how do you split a home equally?

Once it is determined that the family home is, in fact, community property, the difficult process of determining how to split the home equally must be completed. Various factors influence whether the split is as simple as selling the home and dividing any profit equally between the spouses, or as difficult as determining custody of children and ownership of the family home in support of their well-being. Whether one spouse maintains ownership of the home while another maintains possession and pays the mortgage depends upon what is agreed upon. Whether the home is sold as soon as possible for whatever buyer can be found, or only sold when a certain purchase price is met, can also be clarified by agreement.

Agreement between the former spouses is important to ensure that property is split fairly. When there is such agreement, a divorce can proceed with minimal difficulty. However, this is not always the case, and when spouses do not agree on how to split up property and dispose of the family home, an attorney can be essential. Divorce proceedings in court are legally binding, and knowing your rights is important to ensure the ideal outcome.

What are the major factors that impact who gets the family home?

Some factors that divorcing spouses and courts consider include:

  • When the home was purchased
  • Who paid for the home
  • What the home was intended for
  • Agreement between the spouses
  • Whether there are children or dependents from the marriage

Children and custody influence who gets the family home

When there are children within a marriage, and a divorce is being processed, the court will consider the impact of the divorce on the children. Research in the scholarly journal The Linacre Quarterly notes that children whose parents have divorced may have lesser physical, emotional, and academic well-being.

Given the central role of the family home in the lives of children, whether in terms of their social environment or their education, courts will factor children into their decision concerning the disposition and division of the family home. These factors include the amount of time that the children have lived in the home, as stability is an important element in childhood development that the courts take into account.

Beyond the length of time the children have been in the family home, the proximity of the home to their schooling, child care, and other services used are also factored into the court’s decision. Whether the family home is sold and the proceeds divided equally, or one spouse is provided ownership of the home to maintain residence with the children, depends upon the emotional impact that moving might have upon the child.

If one parent is awarded custody, their ability to purchase a new home and the proximity of the existing home to their work are also factored into the decision. If you have children, a California family law attorney can be very helpful in determining what happens to your family home following divorce.

Is it better to split or buy out the home?

If your home is considered community property, the two main choices you have are to either sell the home and split the profit between the spouses, or one spouse may instead buy out the other. In this situation, one spouse takes full ownership of the home and pays the other spouse for their share.

The spouse that purchases the home must refinance it to remove the selling spouse from any mortgage that the property might have. A part of the divorce agreement might be that the spouse selling their share pays the mortgage for the house, keeping the home as alimony, which a family law attorney can help you draft.

Whatever you agree to, the court may indicate otherwise and reserves the right to issue a “deferred sale of home order,” which delays the sale and awards a custodial parent with exclusive possession of the home. There are complicated tax implications to this that an accountant should be consulted with to explore.

A California divorce attorney can help you determine what happens to your home

The factors that must be considered when going through a divorce are complex and can be confusing. To ensure that your home and your property are equitably and correctly divided, reach out to a California family law attorney with divorce experience to advocate for you.