Who Gets the House During a Divorce?

Of all the material assets that need to be divided when a marriage ends, the house is often the one that has both the greatest dollar value and emotional weight, and therefore involves the biggest tug of war. There are numerous questions that need to be answered in determining who gets the house in a divorce. Let’s take a look at the most common (and determinative) ones.

  • Is the house marital property?

This has to do with actual ownership of the house. If a couple has purchased a house together after they’re married then it is community property and you live in a community property state, then it needs to be divided 50/50 as part of marital assets. But if you live in a state that splits assets via “equitable distribution,” the percentage that each spouse gets will be determined according to a different calculation. If one spouse owned the house before marriage then it is likely to be considered a separate asset that they can keep, and that will not be included in the calculation, though this can be complicated if the other partner has helped to pay for the mortgage, repairs and renovations and upkeep.

  • Do both spouses want the house?

Sometimes both members of a couple want to walk away from a house and start fresh. When this is the case, the disposition of it as an asset comes down to having it appraised and putting it on the market, with the profit from its sale being determined by the calculation driving the disposition of all of the marriage assets.

Sometimes a couple can come to an agreement about who keeps the house, using its value as an asset against other assets that they are willing to give up. Often the determination is based on whether there are children in the marriage who know the house as their emotional home. When this is the case the parents often agree that to avoid disruption, the custodial parent will retain the house.

The biggest conflict arises when both spouses want the house. This will often lead to a judge making the determination based on needs such as children living in the home and primary custody; the age, health and earning power of each partner; whether spousal support is being provided; and the disposition of other assets.


If you are facing a challenging divorce and need assistance in determining how assets are distributed, our compassionate, experienced divorce attorneys can help. Contact us today to set up a time to discuss your situation.