For many couples headed toward divorce, division of the marital assets is the biggest point of contention. Specifically, many couples find themselves fighting over who will keep the marital home after the divorce. Truthfully, if you aren't agreeing to terms prior to divorcing (via mediation or a prenuptial agreement), there's no accurate way to predict how the courts will handle the division of your home and other assets.
Equitable distribution guides the process, but that can mean very different things for different families. Each divorce decree is as unique as the couple splitting up. There are several situations more likely than others when it comes to your home, however.
Some couples choose to share the home after divorcing
There are a number of reasons why a divorcing couple continues to co-habitate, or nest, after a divorce. Perhaps the financial resources of the couple as individuals isn't enough for them both to secure a home. Maybe they agree that the children need the stability of still living with both parents.
In situations that involve a nesting agreement, separate living spaces is the ideal. Whether that's a finished basement or a mother-in-law's apartment over the garage, having privacy for each parent is important. Couples should also have a back-up plan in place about how to handle the property if they can't cohabitate after all.
One spouse may end up staying in the home
In some cases, one spouse will receive ownership and possession of the home. Many factors can impact how this decision gets made. For example, if one spouse owned the home prior to marriage or if the property was part of an inheritance, the courts may consider it separate property and simply award it to the original, intended owner.
In other cases where the home is marital property, the courts may choose to award possession of the home to one spouse. Factors like custody of minor children and the ability to secure a mortgage alone will impact this decision. The spouse who isn't keeping the home will generally receive some of the equity or valuable assets to offset the value of half of the accumulated equity in the home. The spouse with possession will need to refinance to remove the other party from the mortgage and property title.
Sometimes, neither spouse keeps the marital home
The courts may determine that the best approach to the marital home is to have the couple sell the property and split the proceeds. This is often the case in homes with very little accrued equity or those that have a mortgage for more than the home is currently worth. This may also be the outcome in situations where neither spouse can secure a mortgage on his or her own.
Regardless of your hopes about your house, you should prepare for the potential need to move if the courts will make the final decisions about the asset division process.