Many spouses face the need to resolve property distribution issues during a divorce, and house division is one of the topics to decide on.
How much is a wife entitled to in a divorce? In most cases, husband and wife have equal rights and responsibilities upon marriage dissolution, and what happens to a house in a divorce depends on many factors, but not gender. Their list may include the type of property, the possibility of negotiating with the other spouse, the presence of a prenuptial or postnuptial agreement, etc.
In this article, we’ll go into more detail about who keeps the house in a divorce and what circumstances can affect the judge’s decision over its distribution. In addition, we will analyze the approaches to determining who gets the house in a divorce and how to protect your interests during the termination of marriage.
Who Decides Who Gets the House in a Divorce?
Typically, who will obtain the house after a divorce can be determined by spouses or by a judge. It mostly depends on the type of case. Can I keep my house in a divorce? Yes, you can, provided you agree on this matter with the other spouse or the court issues an appropriate order.
Parties who have an uncontested divorce and have reached an agreement on property division issues can independently decide who will stay in the house or how they will divide their real estate. When making a decision, they can be guided by their wishes or needs. For example, they may agree that the house will go to the one of them who has sole custody of children so that it will be easier for kids to adjust to the changes in their lives.
Contested cases are usually more complex and require the intervention of a judge. If parties cannot resolve disagreements about the division of a family home, they should ask the court to decide on it for them.
According to PA CS §3502, Pennsylvania is an equitable distribution state. It means that all marital property acquired by both spouses will be shared between them fairly but not necessarily equally. When making a decision regarding the division of a house, the judge may consider a number of factors, in particular:
- Age, health, and financial status of both parties.
- The duration of their marriage.
- Tax consequences of property division for each of them.
- Standard of living during the marriage.
- The ability of each party to purchase real estate in the future, etc.
So, what happens when you divorce and you own a home together? It will depend on many circumstances, including whether your home is separate or joint ownership.
Is the House Separate Property or Marital Property?
Your family home can be separate or marital property; who gets what in a divorce largely depends on the property type. Definitions of separate and marital ownership are outlined in the PA CS §3501. According to it, marital property refers to assets and liabilities of spouses acquired during the marriage; all of them are subject to division between parties upon divorce.
Separate property in divorce will likely not be divided between spouses. It includes assets and liabilities that parties:
- Purchase before marriage or exchange for property bought before marriage.
- Receive as an inheritance or as a gift.
- Define as separate property by concluding a prenuptial or postnuptial agreement.
- Acquire after the final separation but before the date of divorce, etc.
Sometimes, separate assets can become marital ones and be divided between spouses during the dissolution of marriage. It happens when one spouse owns the house before marriage, but after it, the other spouse keeps it or increases its value. In this case, the party who invested money in the family home has the right to get a part of it during the divorce.
In the next section, we will analyze the options for property settlement in divorce depending on whether one or both parties want to get the house.
How Is Home Equity Divided in a Divorce?
There are several approaches you can use to divide property in divorce. Which one you choose and what to do with a house in divorce depends on whether you want to keep your equity or sell it.
Can a wife claim property after divorce? In most cases, the answer will be negative. You can only claim joint assets while they are distributed during the divorce. If the judge made a decision regarding the division of property and you do not agree with it, you can file an appeal. However, you cannot demand the other spouse’s possessions if they were acquired after the divorce.
Therefore, you need to take a responsible approach to the issue of dividing the family home during the dissolution of marriage. Here are several options for how to dispose of it, depending on the circumstances.
Option 1: Sell the house and split the proceeds
One of the most commonly used methods of splitting a house in a divorce is its sale with subsequent distribution of proceeds. If neither of you wants to keep the family home, or you cannot agree because you have a contested divorce, a house split without selling it can be a real test for both of you. It can be much easier to put it up for sale and start a new life in a new place.
To sell a house, you will need to hire a real estate agent; to split the proceeds, you must determine your equity in it. Since Pennsylvania is not a community property but an equitable distribution state, your income from selling the home will not necessarily be the same. You can determine your equity by assessing each spouse’s contributions to its purchase or maintenance.
If you do not know how to split a house in a divorce and neither of you insists on leaving it, selling the family home may be the only suitable option. It will also be appropriate if you have a mortgage that neither of you wants to refinance. However, it may be inappropriate if the market situation is unfavorable, and you may lose a lot of money selling the house due to a sharp decrease in real estate prices.
Option 2: One ex keeps the house
In case of divorce, when you own a house together, selling it is not the only option available. If one of you wants to stay in a family home, you can avoid selling it and buy out the other spouse’s equity. You may manage it in several ways:
- Give up some other assets subject to division in favor of the house.
- Compensate the cost of the spouse’s part in cash in one sum or several payments.
- Refinance a mortgage, that is, take a loan to pay the debt and modify the contract in one’s name.
No matter what method you choose, you have to estimate the home value and determine the other spouse’s equity in it. You can hire a professional appraiser or decide on the cost of the house and the amount you should compensate your spouse yourself.
This option for distributing marital property may not be appropriate if you have a contested case or do not have enough savings to buy a part of the family home. However, if you want to become its sole owner, it may be one of the best approaches for its division.
Option 3: Both keep the house
Spouses who have minor children and do not want to sell their home or do not have enough money to get sole ownership sometimes choose to keep the house and continue to maintain it together. It is commonly used in cases where the market situation is not favorable for sale, or the mortgage debt is very high.
Getting a divorce with a house in both names does not mean you will always own it together. You can enter into an agreement whereby you will sell the house when the situation in the real estate market improves or when children finish school. You may also agree that one of you will buy out the other spouse’s part of the house when you have enough money.
Do I get half of the house in a divorce? If you decide to keep the house for both of you, it does not mean that each of you gets half of it. You should remember that in Pennsylvania, the division of real estate will not always be equal, so you can own 40% or 60% of the house, for example, depending on how much you invested in it.
Ways to Protect Your Assets During and After a Divorce
Protecting assets from a spouse during a divorce can be one of your most important tasks, especially if the other party may engage in misconduct and try to change the type of ownership of a house or other real estate from joint to separate. To preserve your interests in property division, you should know what assets are protected in a divorce; they typically include separate possessions.
Here are some tips on how to protect your money during divorce, prevent the transfer of separate to joint property, and keep the house after the termination of marriage:
- Use prenuptial and postnuptial agreements. When concluding them, you can list all assets and liabilities that are your sole property and will not be divided during a divorce.
- Contact professional legal counsel. If you need help proving that you own part of the property alone, you should hire a family lawyer. It may also be appropriate in situations where your spouse claims a house that belonged to you before the marriage but later became the family home. The professional will also help you get your share of the property if you lived in the spouse’s house but invested in its repair or maintenance and seek to receive a part of it upon divorce.
- Document all assets and liabilities. If, during the marriage, you buy a house alone, you need to document its purchase so that it is considered your separate property in case of divorce. In addition, before the dissolution of marriage, you should prepare a list of all assets and liabilities to prevent manipulations by the other party.
- Be ready for open communication with the other spouse. Uncontested divorces are usually less time-consuming and stressful. If you want to keep the house without attending numerous court hearings, you should try to negotiate with the other party. If your case is contested, the judge will most likely decide to sell the house, and you will be forced to follow their order.
There are several ways how to get a house in a divorce. One of the simplest and cheapest options is to agree with the other spouse on who will keep the family home after the divorce; another is to go to court and ask the judge to divide the property. This option does not guarantee that you will receive a house; however, it may be the only appropriate one if you cannot agree on its distribution on your own.