Despite some minor variations, the laws in each state establish certain specific housing rights in divorce proceedings, according to the American Bar Association Section of Family Law. Each of the spouses, and any minor child born during the marriage and residing in the house, possess interests to varying degrees in the residence.
Function
The rights associated with the marital residence in divorce proceedings exist to serve the function of determining the manner in which the property is disposed of during a marriage dissolution case, according to "Nolo's Essential Guide to Divorce" by Emily Doskow. For example, the house can be sold with the proceeds split in some manner between the spouses.
Considerations
A variety of factors come into play when considering the marital residence during divorce proceedings. If the house was purchased during the marriage, the presumption is that any equity in the house will be split between the parties in the manner dictated by the laws of the state. In a community property state, the division is made equally. In an equitable division state, the equity is distributed based on the specific facts of the case. On the other hand, a judge can allow the spouse with custody of the children to remain in the residence, with some sort of appropriate financial offset to the other parent.
Time Frame
The marital residence is an issue at two primary junctures during a divorce case, according to "The Complete Divorce Handbook: A Practical Guide" by Brette McWhorter Sember. At the outset, an agreement or determination usually is made regarding who occupies the home during the course of the proceedings. Typically, possession of the house follows the children during the divorce proceedings and the parent with custody remains on the premises. Ultimately, an agreement or court order determines what happens to the house when the divorce decree issues.
Pre-Marital Asset
In some cases, one of the spouses owned the residence prior to the marriage. In such a situation, the investment the spouse made in the property prior to the marriage is set aside to her exclusively in the divorce. Only the money paid toward the mortgage and the equity developed through that process during the time the couple was married constitutes a marital asset subject to division.
Future Sale
Parties to a marriage have the right to maximize their return on the marital residence if it is sold. Therefore, there are situations in which it is wise to wait and sell the house at a future date. Alternatively, in some cases a decision is made to sell the house once the children all reach the age of 18. In these scenarios, the court includes in an order a directive regarding the approximate timing of the sale and delineates the manner in which the proceeds from the sale will be split between the parties.
References
- American Bar Association: Section of Family Law
- "Nolo's Essential Guide to Divorce"; Emily Doskow; 2008
- "The Complete Divorce Handbook: A Practical Guide"; Brette McWhorter Sember; 2009
- Cornell University Law School: Divorce Overview
