6 Key Factors That Can Determine Who Gets the House in a Divorce
One thing all divorces have in common is the division of marital property, and often, the most valuable asset a couple has is their home. Who gets the house is one of the most significant decisions that must be made during the divorce process, and there isn’t always a clear-cut answer. In some cases, neither spouse gets the home, and it must be sold instead. In Minnesota, these decisions are based on an overall just and equitable division of property. This differs from the 50/50 split many think of when discussing splitting the marital assets. The courts consider several factors when making this determination, with the most commonly applicable listed below.
1. Whether There Was a Prenuptial Agreement
A prenuptial agreement outlines the marital and separate property of the two parties and how the marital property will be divided in the event of a divorce. A postnuptial agreement does the same thing but is signed after the marriage has already occurred. Who gets the house may be a simple decision if it’s already been agreed upon in one of these legal documents.
Even if the house isn’t explicitly listed, a prenuptial agreement can contain critical guiding principles for the overall property division that may also apply to the house. Remember that having a prenuptial or postnuptial agreement isn’t always ironclad. A judge can discard the agreement if they believe it was signed under duress or false pretenses.
2. Whether the Home Is Considered Marital or Nonmarital Property
Categorizing assets as marital or separate property is one of the first steps in property division, but it’s not always immediately clear which category the house falls into. Many people mistakenly assume that if the house is only in one party’s name, it will be that person’s separate property. However, if the home was acquired after the marriage or was used as the primary marital home, it is likely to be considered marital property regardless of whose name is on the deed.
It is possible for a home to be considered nonmaritalseparate property., but this is more common in high-asset divorce cases where there are multiple homes. Suppose one party kept the house they bought prior to the marriage and rented it out while living in another home with their spouse. This original property is likely to be considered nonmaritalseparate property unless marital funds were involved, such as with upkeep or improvements and payment towards the mortgage. In that case, a party may have both a nonmarital and marital interest in and to the real estate. has both a nonmarital and marital compthe other party may be due a buyout payment of their share of those funds.
3. Who Is Getting Custody of the Children
It may surprise you to learn that the custody arrangement can affect the division of marital property, especially if one parent is getting sole custody or will be spending the majority of the time with the children. If the children have been raised in the family home and the custodial parent is financially able to keep the home and wishes to, the judge may award the home to that parent to prevent more disruption in the children’s lives. This can ensure they also get to stay in the same school district if that is a factor.
4. Each Spouse’s Financial Circumstances
One of the often-overlooked aspects of deciding who gets to keep the house is each party’s financial ability to maintain the home. Many couples buy a home based on a two-income household and both people being able to maintain it. After divorce, financial circumstances are often drastically different. If only one spouse is financially able to make the payments on the home and continue the upkeep and expenses, this can be a significant factor.
5. Whether One Spouse Wants the Home
Desire is another factor to consider. Many people want to get a fresh start after a divorce and don’t want to be reminded of the memories and dreams they had with their soon-to-be-ex partner spouse. If neither party wants to keep the house, it’s more likely that the home will be sold and the proceeds split between the two parties as part of the larger property division process. If one party wants to keep the house and is able to buy out the other’s interest, this can also make the decision easier.
6. The Rest of the Property Division Settlement
Who gets to keep the house isn’t a decision that’s made in a vacuum. It has to be part of the overall property division process and result in a just and equitable settlement. It’s essential to look closely at the financial repercussions of taking the house and discuss how those factors contribute to a just and equitable settlement with your attorney. In some cases, it’s possible to negotiate to keep the home by offering trades, such as a higher percentage of the retirement accounts.
A home is a significant asset, but it can also be a considerable debt. Getting an appraisal to determine the current market value and factoring in other related expenses, such as property taxes and insurance, are key to getting the complete financial picture and avoiding an unfair settlement.
Deciding whether to keep your house often comes with mixed emotions. It can give you familiarity and comfort when the rest of your life is undergoing such extensive changes, but the potential financial impact shouldn’t be overlooked. Whether you’re not sure whether you want to keep or sell the house or it’s the most important thing to you, Barbosa Law Group PLLC can help. Call 612-887-9286 to discuss your situation with an experienced family law attorney.
