Divorce & Home Ownership Questions

by Wayne Thomas
Some states give the parent with sole custody of the children the right to continue living in the marital home.

Some states give the parent with sole custody of the children the right to continue living in the marital home.

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A home can provide a person with a sense of foundation in the neighborhood and local community. For that reason, a couple may become highly attached to their residence over the course of a marriage. If the marriage deteriorates, the couple is likely no longer able to live together and each spouse may try to lay claim to the house in divorce.

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Classifying the Home

The timing and method of how the home was acquired is crucial in divorce. This is because in most states, property acquired before the marriage or received by inheritance or gift during the marriage is generally not subject to division. Instead, it remains the "separate" property of the spouse that acquired it. If your house was acquired during the marriage by some other method than gift or inheritance, it is likely considered "marital" and usually subject to division by the court.


Sometimes the classification of real estate can be changed during marriage. For instance, if a spouse had a family cabin owned in his name prior to the marriage, but then he retitled the property adding his spouse's name to the deed during the marriage, this act could be viewed as "transmutation." Transmutation means that the formerly separate home has now become a marital asset that is subject to division in divorce.

Partition Problems

When parties cannot reach an agreement, the court is tasked with dividing marital property either evenly or on the basis of fairness, depending on the state. Real estate can present a problem in both scenarios, as the court likely cannot literally divide a home between two people. To deal with this issue, courts have the authority to offset an award of the home by allocating more debts to the receiving spouse or greater property or an alimony award to the other spouse. If there are no viable assets to offset the award, or marital debts are large, courts often also have the authority to order a sale of the home and divide the proceeds.


Children can also play a role in the disposition of the home after divorce. Some states give the parent granted sole custody of any minor children the right to live in the marital home for a period, regardless of which spouse is awarded ownership in the divorce. This rule is to help minimize the disruption of moving on the children and to ensure that the kids can continue to be in close proximity to school and extracurricular activities.