Who Gets to Stay in the House During a Divorce?

Posted in Divorce,Property Division on June 5, 2024

Divorce involves the division of assets in all situations. It is taking one life built together and dividing it among two people. Who gets to stay in the house during a divorce is dependent on a number of factors based on ownership. Let a Del Mar divorce attorney from Ratzer|Dobis review your case today.

California Is a Community Property State

California operates as a community property state, which means that if the home is purchased during the marriage, it is considered owned by both of the spouses equally. That is true even in situations where just one person’s name may be on the title.

In this situation, both people are equal owners, and both must be given equitable division of the property in some way. The divorce details how this may happen.

Selling the Home in a Divorce

The simplest of decisions is to sell the home. That means neither party remains in the home. The funds from the sale are used to pay off the mortgage on the home first and then divided amongst both parties.

If two people cannot agree on who should maintain ownership of the home, the court may push for it to be sold.

One Spouse Buys Out the Other

If one spouse wants to keep the home, they may be able to buy out the other spouse. In this situation, the spouse who wants to live in the home must pay the other spouse half of the value of the home. This may mean obtaining a new mortgage to cover the loan.

In some situations, it may be possible to do this without an actual payment. For example, the home’s value may be offset by the value of a retirement account or the money that is in other assets the couple owns together.

What is Best for You

When it comes to making decisions about who gets to stay in the home, there are multiple factors to keep in mind. Many times, people do not want to leave home, especially if it is the house their family grew up in, but consider the following:

  • If only one person will maintain ownership, will that person be able to afford all of the costs of owning and maintaining the home?
  • Does it make sense to sell the home if the home is worth less than what is owed on the mortgage? If not, you may wish to work with a lender to rework the loan or move through a short sale.
  • Consider your long-term financial obligations and needs. You may no longer need a large home, and it may not fit your new budget.

It takes careful consideration to determine what strategy is best for your situation. More so, the court does not follow just one specific strategy. They will agree to and work with the couple if they can come up with a solution together, or, if not, they will be forced to ultimately decide on the best route forward based on what an equitable division of the property would be.