Who gets the house in a divorce with children?

September 13, 2021

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One of the most challenging aspects of divorce is deciding on the division of assets. In which, the matrimonial house is one of the most crucial and significant assets. The court tries its best to ensure equal and right distribution of the assets between both parties, especially when there is the children’s involvement.

The divorce phase is traumatizing and challenging not only for the parents but also for the children. Hence, it becomes imperative to make sure they have a safe place to live, ensuring their mental and physical wellbeing.

The decision of who gets the house in a divorce with children and the house needs to be taken with utmost care and consideration. In this article, we will discuss how this decision is taken, and the factors are taken into consideration.

From a legal perspective, if both the parties have names on the house papers, you both have equal rights to live in the house. However, that might not be the case everywhere. There are times when only one of the spouses’ names is put on the property papers.

Does that mean complete entitlement of the property to that spouse? Not necessarily. There is no set of rules when it comes to who will get the rights to a family home. Instead, there are factors that the judge may mull over to give judgment concerning the house. In most states, divorce laws prioritize the welfare of the child more than anything else. It means the judgment aims to ensure a secure home for a child with minimal disruption to his/her life after the divorce. 

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So, for this reason, the spouse, who is responsible for the day-to-day care of the kid, will be entitled to the family home. In a nutshell, the parent linked to the custody of the child gets the house, with the court awarding the property to the primary caregiver. 

Property Orders

However, even though the other partner may not be entitled to stay in the family house, it doesn’t mean they are exempted from paying off the mortgage or written off the title deeds. There may be different arrangements made in the property order passed by the judge. 

For instance, it may be agreed that the caregiver may live in the family house until the child turns 18. 

Another arrangement includes when the property is sold; the money will be between both spouses. 

An alternate arrangement could be transferring property from one person to another, but the other person receives a pre-fined percentage when the property is sold. 

Certain provisions will be made if the family house is rented after divorce. 

Also Read: Here’s What Happens to the House After a Divorce in Canada

Dealing with Mortgage During Divorce

If you do not own a family house, the mortgage is a crucial factor that must be considered. Often, the spouse who is leaving the family house would ideally want to free up from the burden of a mortgage, freeing up to invest in another property. 

In such scenarios, the court will consider whether the person taking care of the child, staying in the family house, can afford the mortgage payments. 

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If not, then a certain percentage of the mortgage may be included in the Spousal Maintenance Payments to cover your mortgage costs. 

Try to Work It Out With Your Spouse

Many times, you must work it out with your spouse on how to divide the property rather than resolving the issue in court. It is in the best interest of both to avoid the sky-rocketing of lawyers and emotional stress associated with battling the family house case in the court. Ideally, you probably are not the judge to make the tough decisions for you. 

The family house dispute decided mutually without the court intervention is highly preferred. 

Who Gets to Stay in the House During a Divorce?

It mainly depends on you or what the judge orders. During the initial separation, there’s a good chance that this arrangement will continue for the divorce phase also. The stakes are raised in a scenario of domestic abuse. 

In cases, the abusive partner would be asked to stay out of the house for a restraining order. If any spouse violates, then they may be subject to arrest. 

Get Legal Advice From a Divorce Solicitor

Before you make any claims in court for the custody of a child or the family home, it is highly recommended to find a credible lawyer to assist you. 

Often, family lawyers are well-versed with the complexity of state and federal laws to guide you on how to proceed with filing a request. They will not only help you out with the paperwork but also fight your claim in the courtroom. 

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So, hire your attorney carefully, make sure they have relevant experience and a positive portfolio.

You can get a free consultation from highly competent lawyers here.