Divorce brings a toll on everything in your life – you are suddenly single, you need to decide how you will divide your belongings, kids, pets and, of course, who gets the house in a divorce. It’s an emotional and stressful process that sometimes takes years to end – but it doesn’t have to be.
In this article I will talk about who gets the house in a divorce, divorce property settlement, what happens to the house during the divorce process, who gets what and marital home rights.
Are you ready? Let’s go!
Let’s start at the beginning.
HowStuffWorks defines 3 steps of divorce:
- Separation
- Divorce property settlement
- Child support and alimony
In this article, we will look at step number 2 bit closer.
Who Gets The House In A Divorce?
Also known as divorce property settlement.
Normally, properties are categorized in two different types: Marital, and Separate.
Separate property
Please note that the definitions of Separate Properties vary by state, but normally, Separate Property refers to properties owned by the person before the marriage, a property you have inherited before or after the marriage or a property which you have received as a gift.
When you add your spouse as a co-owner of the property, you lose the Separate Property status – the property is now Marital Property.
Marital Property
Here’s how GalTime defines Marital property:”Marital Property consists of all income and assets acquired by either spouse during the marriage including, but not limited to: Pension Plans; 401Ks, IRAs and other Retirement Plans; Deferred Compensation; Stock Options; Restricted Stocks and other equity; Bonuses; Commissions; Country Club memberships; Annuities; Life Insurance (especially those with cash values); Brokerage accounts – mutual funds, stocks, bonds, etc; Bank Accounts – Checking, Savings, Christmas Club, CDs, etc; Closely-held businesses; Professional Practices and licenses; Real Estate; Limited Partnerships; Cars, boats, etc; Art, antiques; Tax refunds.”
When is Separate property considered Marital Property?
Some states will also differ between Active and Passive Appreciation when it comes to Separate vs. Marital Property.
Active Appreciation simply means that your partner contributes directly or indirectly to the house income.
Passive Appreciation is a bit more complicated. If you used any of your marital income on your personal property, it can be considered as a marital property.
So who gets what?
When dividing your assets, these things are taken into consideration:
- How long your marriage lasted
- Separately calculated income of the spouses
- Living style and standards
- Your emotional and physical health
- Financial situation after the divorce
- Custody needs
Divorce takes time and it involves more than just you and your spouse. When you’re dealing with divorce property settlement, it’s best to hire a divorce lawyer. However, by doing so it makes it impossible to predict who will get what, including who gets the house in a divorce.
When should you take your divorce to court?
Hire a reputable divorce lawyer first – they will do their best to help you settle things in a civilized matter. If your spouse is not cooperating or refuses to get in contact, that’s when you should consider taking divorce to court.
I also suggest taking a look at The Uniform Marriage and Divorce Act which looks closely at property settlement laws for eight states as well as child custody, the division assets and more. All your questions about who gets the house in a divorce will be answered.
What about divorce house buyout?
In a buyout, you will first have to determine the value of the house.
The easiest and simplest way to determine the value of the house is to sit down with your spouse and agree on it – however, it is hardly ever that simple. Again, this is where your divorce lawyer or your financial advisor will be able to help you.
Can I be forced to give up the house?
In order to avoid having to give up the house, you need to make sure you agree on some kind of a financial settlement. This is where a buyout comes into play. If you’re financially unable to fulfill the court requests, the best option is to sell the house and opt out to buy a house with a smaller value.
The court often also takes the welfare of your children into consideration – often the children stay in the family home due to the number of assets, the lifestyle and the courtesy of causing as little disrupting as possible.
So what should my first steps be?
Firstly, I suggest sitting down with your spouse and really talk about who gets the house in a divorce. Determine how you will divide your assets, think of custody and property settlement. If a decision has been made or in the case of no cooperation, your next step would be to contact the divorce lawyer and determine whether you need to take things to court.
Divorce is a complicated process and often the most stressful time for most people. Think clearly and don’t make any quick decisions, especially if you have children. If possible, make sure that things are fair and understandable for both parties.
Thinking of selling your house after the divorce?
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We’ve helped hundreds of homeowners sell their San Antonio houses. Give us a call on 210-596-9669 to receive your first quote! We will answer any real estate questions you might have.