Figuring out what will happen to your house is a question most men consider as they prepare for divorce. Your house is likely one of your largest assets. It can also be one of your largest liabilities if you have a mortgage. As a result, understanding the process for who gets the house after a divorce is important.
Washington is a community property state, which means the character of your house (i.e., is it community or separate property?) along with other factors, will generally decide who keeps your house. Divorce can be a complex process because of valuable assets like your house. You must understand your rights during divorce proceedings to make informed decisions. If you and your spouse cannot agree about who gets the house, the court will decide using the framework explained below.
The Difference Between Community and Separate Property
The concept of community property simply means that the law considers both spouses to equally own property acquired during the marriage or acquired with marital assets. In contrast, separate property is property owned before or outside of the marriage (e.g., an inheritance).
A court will typically allow each spouse to retain their separate property, but will equitably divide all community property. The court will not always simply divide community property in an even split. Rather, a greater share of the marital assets may be awarded to one spouse, depending on income and earning potential, to avoid severely disadvantaging that spouse.
Determining if your house is a community or separate property will depend on the facts of your case. In most cases, the house will be community property. In some cases the house could be a separate property or a combination of separate and community property. For example, one spouse could have bought the house before marriage, but both spouses could have contributed to paying the mortgage during the marriage. This mutual contribution could blur the characterization of the house. This is commonly referred to as “commingling.”
Other Factors that Will Influence Who Gets the House
Assuming the house is community property, a decision will have to be made about who retains ownership after the divorce. Typically, one spouse will keep the house while the other receives a share in the value of the house through a larger share of other assets. Several factors will play a role in the decision.
- Prenuptial or separation agreements: If you and your ex-spouse entered into any prior agreements that determine what happens to your house, then a court may uphold the terms of that agreement. However, there are always exceptions that might exist or reasons why the court may not enforce the agreement.
- Income and affordability: A court will also review the ability of both parties to afford the house – giving preference to the spouse that can afford the mortgage, taxes, and other expenses. Whether the house is essential to one spouse’s business operation could also be determinative. If it is decided that one spouse will retain the house, it may be necessary for that person to refinance the mortgage.
- Children and relocation: A court will attempt to avoid major disruptions to children during the divorce, which means a court may award the house to the spouse that will be the primary custodian of the children.
In rare cases, a court may refuse to award the house to either spouse – forcing you to sell it. This is more common in cases where neither party can afford the house, or where preference to one party would be too inequitable. In the case of a sale, division of the sales profit can also become a point of contention.
Schedule a Consultation for Help with Your House and Your Divorce
Deciding who gets the house in a divorce is not a decision that should be made quickly or without proper representation to protect your interests.
The attorneys at Divorce Lawyers for Men are available throughout the state of Washington and are experienced in the nuances of dividing and protecting major assets like your family home. Schedule a consultation with our office to review your case and explore the options available to you.