Who Gets the Marital Home After a Divorce?

Divorce distributions of goods are difficult processes, and the situation becomes even more difficult if a house is part of the distribution. Who receives the marital home after a divorce depends on which person bought it and when it was bought. Finding an experienced divorce attorney will help with deciding who gets the house after divorce.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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  • Who gets the marital home after a divorce is a difficult situation
  • Everything depends on who bought the home and when it was bought
  • Bifurcated divorces can both complicate and simplify things

If you are getting divorced and you moved into your spouse’s house after you were married, then the house would not normally be part of the property distribution because it was separate property, since it was acquired before the marriage took place.

You won’t be allowed to keep the house in most cases, nor will you necessarily get a portion of the proceeds of the sale of the house if it is sold because it was never community property.

The general rule for the premarital property is, anything that was owned before marriage by either party, such as homes or other assets, is separate property and not subject to community property division in a marital settlement agreement during a divorce.

However, there are some situations where part of the value of the home may belong to the non-owning spouse. In this article, we’ll cover:

  • Keeping the marital home after divorce
  • Who gets the house in a divorce with children
  • What happens when you divorce and you own a home together
  • Who has to leave the house in a divorce

We know divorce law can be tricky, especially in circumstances like this. Keep reading as we dig deeper into this scenario, and as we also reveal your options under marital property laws.

If you’re looking for a divorce attorney to help with who gets the marital home, enter your ZIP code into our free legal help tool. It’ll help you find an attorney in your area.

Community Property Claims Help  Determine who Gets Home After Divorce

So, if the separate property includes homes, how could you have a claim? Issues arise when the property value of the separate property increases over the course of the marriage. In this situation, it is important to determine the reason or reasons that the property value increased.

If improvements were made to the home during the marriage, this may increase the value. This would be classified as an active increase. A passive increase, on the other hand, is one that is caused by market forces or inflation.

An active increase is made by one person or both parties working or managing their own or their spouse’s separate property and improving it. This increase may be subject to marital assets distribution even though they owned the house before marriage.

In cases of active increase, the spouse that owns the home would have to buy the non-owner out in order to keep the house, or the non-owner would get a portion of the money if the owner decides to go ahead and sell the home.

The tricky part here is to decide how much of the home’s value increase was the result of the improvements to the real property and how much of it was a factor of inflation and the market. A real estate professional or appraiser can help with the process of determining this to see who will be
staying in the house after divorce.

After determining the value of the improvements to the home that were made as a couple, you then have to decide how much each partner contributed financially to the improvements to the piece of property prior to the separation.

There are also challenges when facing a bifurcated divorce, which is when different parts of a divorce case are handled separately.

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Frequently Asked Questions: Tactics for Divorce Proceedings

Now that we’ve covered some topics related to marital homes and divorces, let’s get to your frequently asked questions. They include what happens to the marital home during a divorce, can your wife take everything from you during a divorce, and how you can hide money from your husband before divorce proceedings.

#1 – Can I stay in the marital home after divorce?

Yes, depending on the agreement regarding the marital home during the divorce proceedings. Some ex-partners elect to move in and out of the home depending on the custody of the children and may decide upon co-owning a house after divorce.

For instance, one will stay with the children in the home for a time while the other lives with family, then they will swap. This is especially true during difficult economic times and if the terms of the agreement hurt the individual who is the higher earner.

#2 – What happens to the marital home upon divorce?

Most states have clauses that the marital home be divided “fairly,” meaning that the property becomes indivisible. A lot depends on who bought the home or how much each person contributed financially to buying it (or paying off the mortgage), as well as when it was bought.

If only one person’s name is on the title and that person bought the house before marriage, it is likely they will keep the home, though a great deal depends on the state in which the couple is married or are in the process of divorcing.

#3 – Who typically gets the house in a divorce?

Who gets the house depends on who bought the house, the percentage that each partner contributed to the mortgage payments or the downpayment, whose name is on the loan agreement, whether the house was bought by one individual before marriage, and other facts.

#4 – Can my wife take everything in a divorce?

She can’t take everything during a divorce — just what is considered “hers” depending on the financial contributions to the property and other things. This depends, however, on the jurisdiction, city, and state where the divorce is taking place, as wives are sometimes favored more than the husbands (in heterosexual relationships) in divorce proceedings.

#5 – Can I kick my wife out if I own the house?

If you are married, then no. Legally, the house belongs to her as well, even if only the husband’s name is on the property.

#6 – Can I empty my bank account before divorce?

You can, but it could have consequences. Emptying right before the divorce signals that that money is likely jointly owned between the husband and wife and will be subject to divorce proceedings.

#7 – Can my husband take everything in a divorce?

In many states, jointly-owned assets are divided 50/50, meaning you’d receive 50% of all property, money, or jointly-owned assets. However, in divorce proceedings, whoever has the best lawyer is likely to win and could take a disproportionate amount of the assets or simply make it impossible for the other party to continue fighting, by dragging the divorce proceedings out so long.

#8 – How can I hide money from my husband before divorce?

Some options include having a separate bank account with just your name on it. Hiding things like prepaid gift cards so that your husband cannot find them. Get your own credit card. And get a safety deposit box.

How to Get Legal Help

Divorce law can be complex, especially when real estate is involved. If you are going through a divorce, you should strongly consider speaking with an attorney for assistance and advice.

If you need legal help with dividing up the marital home, plug in your ZIP code into our free professional help finder system to see the professionals near you.

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