The Primary Residence in a Divorce
By Wayne Thomas
Updated March 30, 2020
A primary residence can be one of the largest assets to divide in a divorce. Because the family home is not easily capable of division between spouses, the court may decide to order the property sold or, alternatively, award it to one spouse after considering several factors outlined in state law. To offset the value of any home awarded, the other spouse may receive a larger share of the remaining assets, less marital debt or a reduced alimony obligation.
Property owned by a couple during the marriage must be divided in a divorce proceeding. If the parties can agree, they may control the manner in which the assets are distributed. But, if they cannot agree, a judge will decide for them. The factors a judge will consider can vary from state to state, but a court will generally either divide the value of the property equally or divide it based on the principle of fairness, after considering each spouse's individual contribution to the marriage.
Dividing a Home
After a divorce, it obviously becomes impractical for a couple to continue living in the same house. In many cases, selling the home and dividing the proceeds is the easiest solution. But if the needs of the parties or current market conditions do not support this option, a judge may decide to award the residence to one spouse. This decision must take into account whether that party has sufficient income to pay all applicable utilities and taxes on the property. Also, depending on the size of the real estate, a judge must consider whether that spouse can properly manage and maintain the property. For example, if during the marriage, one spouse performed all landscaping, repair work and housekeeping, a judge might see the value in awarding the home to that spouse in order to eliminate the need to contract for these services.
Role of Custody
The manner in which child custody is decided can play a role in determining which spouse will be awarded the primary residence. This is because courts want to minimize the disruptive nature of the divorce process on the children as much as possible. For example, assume one parent is awarded sole custody of the children. If the children were raised in the marital home and have significant ties to the community, neighborhood and school, a court could conclude that the spouse with custody should get the home to maintain consistency in the lives of the children.
Offsetting the Award
To ensure an equal or fair distribution of the marital assets, an award of the primary residence to one party may be offset by a larger award of additional marital assets to the other party. For example, if the couple has significant money or valuable antiques, these assets may be used to offset the value of the residence. As an alternative, marital debts may be distributed to reduce the net award of the home. Generally, if a mortgage is attached to the home, the spouse receiving the property will be responsible for making these payments. This serves to both offset the award and avoid a situation in which one spouse is paying debts on property he does not own. If the award is still too favorable to one party, a judge may decide to reduce or eliminate an alimony obligation. Alimony is based on need and ability to pay, which takes into account the relative financial situation of the parties after property is divided.
- HG.org: California Divorce Basics
- Hg.org: Oregon Divorce Basics
- Financial Planning Association: The House Decision in Divorce
- McKinley Irvin: Division of Assets in Divorce: The Family Home
- Law Offices of Richard C. Trollope: Property Division & Alimony
- Michael L. Idema: Michigan Property Division Rules
Wayne Thomas earned his J.D. from Penn State University and has been practicing law since 2008. He has experience writing about environmental topics, music and health, as well as legal issues. Since 2011, Thomas has also served as a contributing editor for the "Vermont Environmental Monitor."