Q: Who gets to keep the family home after a divorce?
A: According to divorce lawyer Suzanne Griffiths, there are at least five factors that a divorce court will consider when deciding which person gets to keep the family house in a divorce.
1. Specific state and county divorce laws
How courts determine which party gets the family home varies state to state, even county to county. Remember to always check your state’s specific divorce laws and consult with a local divorce attorney who will fully understand the local laws that will apply to your divorce.
2. Who has primary custody of the children
When considering the division of property, courts consider the specific situation of each spouse at the time the division of property will become effective. The court must consider the desirability of awarding the family home, or the right to live in the home for a reasonable amount of time, to the spouse with whom the children will live most of the time. Therefore, the parent who has primary custody of the children usually has the advantage.
3. Financial ability to maintain the home
A court may also consider whether it is financially feasible for the primary parent to maintain the home, refinance the mortgage and pay the bills and other obligations related to the home.
4. No fault divorce vs. fault divorce states
Whether your state is one that grants divorces based on fault could possibly affect the court’s decision. For example, Colorado is considered to be a no-fault divorce state. What this means is that if one of the parties is having an affair or has abused the other, the court cannot take that information into account when allocating the assets, including the family home. However, a court in a state that allows fault divorces might assess the situation in a different way.
5. If the home was a gift, inheritance or owned prior to marriage
The court will also consider whether the family home was received by gift, inheritance or was owned before the marriage. If any of those are true, then it will generally be awarded to the spouse who received the gift or inheritance, or who owned the home prior to marriage.
6. Additional factors
Other factors that a court will consider in allocating the family home include how much each spouse contributed to acquiring the property. This is not only who paid the most money — it also includes the contribution of a spouse as a homemaker.
This article originally appeared on Avvo and was written by Colorado divorce lawyer Suzanne Griffiths.
