The court could grant one side a house in the divorce, but it would be unusual without a strong basis. When a spouse threatens to gain a house in the asset division, we usually ignore it. There are cases where one side can argue for a house during a divorce. Keep reading to learn more.
Temporarily receiving the house.
In certain circumstances, the court can only compel a divorced litigant out of their residence. The court can issue a domestic abuse prevention order (or “restraining order”) under section 209A. The abusing party must leave the residence and cannot return if the court issues a one-year restraining order. When there is a real danger to the other party or children, the court may order one party to have exclusive use and occupancy of the residence under Chapter 208, Section 34B, for up to 90 days without a restraining order. Motion extends the 90-day timeframe.
Permanently getting awarded the house.
If the court must decide whether one party will obtain a family home in the divorce, it must weigh many considerations. The following elements are listed in Chapter 208, Section 34:
- Duration of the marriage
- Party behavior during the marriage
- Age and the health of parties
- Occupation and income
- income opportunity for both parties
- Children’s present and future needs
- Homemaker and asset acquisition and preservation donations.
How does the court award a house to one party?
Some divorces merit one party acquiring a residence. Here are the most typical ways a family court judge may grant a residence to one spouse over the other’s objection:
- There are enough assets to counterbalance equity. If there are other assets one spouse may receive instead of the house equity, one spouse may be allowed to keep it.
- One spouse wants the house and offers a “buyout.” Parties desiring to buy out the other party’s stake in the family home will often provide evidence at trial that demonstrates the home’s value (typically appraisals) and that they qualify for a fresh loan to pay the other spouse.
- When house equity is zero. If a home has no equity and one spouse wants it and presents a solution that exonerates the other (such as removing the mortgage obligation), the court will likely let one party keep the house.
- When one spouse has done so much wrong that justice requires the court to award the other property, gambling can cost one spouse thousands of dollars and generate other financial problems.
- When one spouse cannot get a similar property in the future after a long marriage.
- A spouse wants to keep a home for dependent children. In these circumstances, a plan must be made to “buy out” or offset the opposing party’s equity position with other assets.
