When Divorce Hits Home

When a marriage ends by divorce, legal separation or annulment, one of the most important issues is division of property between the spouses. With the economic downturn, many couples find that their most valuable asset is the marital home. Because of this, the division of marital property and the marital residence is paramount in divorce cases.

When the spouses are living together at the time of the divorce or separation, neither spouse can deny the other use of the home until there is a court order that allows it. When dividing property, the court may award the husband and wife any or all property, including property belonging to the other spouse, based on what is equitable. First, the court classifies the home as property subject to distribution. Next, the court decides how the value of the property will be determined. Finally, the court determines the most equitable distribution of the property among the spouses, which is not necessarily the most equal.

Classifying, valuating and distributing property is a complex proceeding that may be open for interpretation. Having a knowledgeable family law attorney on your side during this process is the best way to receive a more favorable distribution.

When deciding what is equitable and who should receive the family home, the court may consider a variety of factors as with any property:

  • Length of marriage
  • Causes of divorce or separation
  • Ages and health of each spouse
  • Station and occupation
  • Amount and sources of income
  • Vocational skill and employability
  • Estate, liabilities and needs
  • Capacity for future acquisition of capital assets and income
  • Contributions to the acquisition, preservation or appreciation in value of the estates, including homemaker contributions

The court may also consider each spouse’s special needs, disabilities and whether it benefits the spouses’ children for one parent to remain in their home. When the parent with custody of children obtains the home, often the other parent may receive assets to offset the value or installment payments, though cases vary greatly depending on the circumstances. Knowing how to argue these important issues to your benefit is essential when dividing a marital estate.