Who Gets the House in a Divorce? Property Division and Your Rights

Going through a divorce is difficult enough without having to make big decisions about your shared home and largest financial asset – decisions that may impact your family and finances for years to come.

However, with the right guidance and legal support, you can reach an agreement that allows you to move forward in a positive way. 

In this article, we’ll walk through how courts determine who gets the house in divorce, as well as tips for increasing your chances of keeping your home.

Is the House Considered Marital or Separate Property?

The first question to address is whether the marital home is deemed marital or separate property. This designation has important implications for how the house will be divided.

Marital property generally includes assets acquired during the marriage, even if they are only in one spouse’s name. This is because marriage is viewed as an economic partnership under the law.

Separate property encompasses assets brought into the marriage, inherited property, and gifts given to one individual spouse.

So, if you or your spouse owned the house prior to getting married or received it as a gift, it would likely be considered separate property belonging solely to you or your partner.

How Courts Determine Who Gets the House in New Jersey

If the home is marital property, the court will look at several factors to decide who gets to keep it. According to New Jersey divorce law, assets are to be divided in a manner that the court believes is fair and equitable.

Some of the key considerations include:

  • The needs of any minor children involved, including keeping them in the same school district or community.
  • The financial situations and future economic prospects of both spouses. For example, one spouse may need more assets due to lower earning potential.
  • Non-financial contributions to the marriage and the acquisition of assets. For instance, if one spouse made sacrifices to support the family or take care of the home.
  • Sentimental attachment and who has been primarily residing in the home.

There are a few common outcomes when dividing the marital house:

  • Selling the home and splitting any profits earned after paying off the mortgage and real estate commissions. This provides both spouses with cash to start fresh.
  • Buying out the other spouse’s share of equity. If one individual wants to remain in the home, they can pay their ex their portion of the equity to assume full ownership.
  • Continued joint ownership for a period of time if selling quickly is not feasible. Some couples will maintain joint ownership until one spouse can refinance or buy the other out.

Reaching an agreement on dividing the house can be very difficult emotionally. An experienced New Jersey divorce lawyer can represent your interests in negotiations and mediation sessions to help you reach a fair resolution.

Factors Impacting Who Keeps the House

Beyond how the overall marital property is divided, there are additional considerations regarding the house:

  • Minor children. Keeping the children in the family home is often deemed a top priority. The spouse who gets primary custody may get the house so the kids’ lives are less disrupted.
  • Financial situation. Courts look at each spouse’s income, assets, debts, and ability to afford the home long-term. Refinancing capacity is especially important.
  • Emotional attachment. The spouse who feels greater emotional attachment may argue to keep the house for non-financial reasons. But courts won’t make decisions based on emotions alone.
  • Contributions. Spouses who made greater financial contributions, such as a larger down payment or paying more toward the mortgage, may have a stronger claim. Non-financial contributions like home improvements are also considered.
  • Hardship if sold. Selling the house could impose hardship on a lower-income spouse who can’t easily find affordable alternative housing. Courts may allow that spouse to remain in the home.

Tips for Deciding Who Keeps Your Marital Home

Divorcing spouses have some control over the property division outcome if they take proactive steps:

  • Communicate wants/needs early. Make your preferences clear before submitting proposals to the court. Be open to compromise.
  • Get professional advice. Consult real estate and legal experts to understand all options. Mediation can help negotiate win-win solutions.
  • Know the numbers. Get appraisals on the house and other marital assets. Understand incomes, expenses, debts, and future earning potential.
  • Consider tax impacts. Selling the house may trigger capital gains taxes. Alimony payments can be deductible for the payer and taxable income for the recipient.
  • Look beyond the house. Don’t view the home as the only asset up for grabs. Offset who keeps the house by dividing other assets like retirement accounts.
  • Think long-term. Don’t make decisions based on emotions. Focus on your future financial well-being and stability.

Working With a New Jersey Divorce Attorney

Divorce laws vary by state, so it’s essential to work with a local family law attorney to understand your rights and options around property division. An experienced New Jersey divorce lawyer can provide strategic advice and guidance to your unique situation while negotiating firmly on your behalf.

The attorneys at Netsquire have successfully represented thousands of clients in New Jersey divorce cases. They are committed to protecting your interests so you can move forward with confidence into your new future after divorce. 

Contact their team today to book a consultation and discuss your case.