One of the largest -- and sometimes most sentimental -- assets that many divorcing couples must determine how to divide is the family home. Most couples are able to reach an agreement about what to do with it on their own, with the help of their attorneys. Often it works best for both if they sell it and divide the profits. Sometimes one spouse will buy out the other's share.
An increasingly common solution, particularly when there are children, is for both spouses to continue to live in the home. Of course, this requires an amicable relationship and a large enough home to avoid constantly running into each other. Some couples take turns staying in the home with the children. Both of these solutions can help minimize disruption for kids.
If a couple can't reach an agreement, a family court judge will be called on to make the determination of what to do with the home.
What Factors Do Judges Consider?
If the home has been inherited by one spouse from his or her family, even if both spouses are legal owners, judges usually rule that the spouse who has a family connection to the home gets to keep it.
In some cases, if there is another marital asset of similar value, judges may determine that one spouse gets the home and the other gets that similarly-valued asset. However, keep in mind that there are ongoing costs to keeping up a home. Therefore, the spouse who gets the home may not be getting the better deal, particularly if the other asset is something like a 401(k) that is cost-free.
If there are children, judges are required to consider what's in their best interests. Usually, they will rule that the parent who has primary custody of the kids will keep the home so that they can stay in their school and near friends.
What If Neither Spouse Can Afford to Keep the Home?
Of course, even if it's best for the kids to remain in the home, if the parent with primary custody can't afford it, even with spousal and child support, that's just not financially feasible.
If neither spouse can afford the home on his/her own, a judge will likely determine that they need to sell it and divide the profits. This division will be based on who has contributed more to the purchase and upkeep over the years.
Determining what to do with your home is one of the first issues that divorcing spouses should tackle. Your family law attorney can advise you on the pros and cons of various solutions and on the laws of your state involving residential property.
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