Home, Sweet Home: What Happens to the House in a Divorce?

“What’s going to happen to my house?”

This is often the first question that comes to mind when getting separated or divorced, and for good reason – your house is usually one of your biggest assets and can be a source of comfort and stability.

As a divorce attorney, I frequently answer the following questions about homes:

When can I sell my house?

If the house is jointly titled, you can sell your house whenever you and your spouse agree. If you can’t agree, the Court will decide what will happen after a trial at the end of the divorce process. The trial usually takes place nine to 18 months after you file your case.

Do I have to sell my house?

If the house is jointly titled, you and your spouse can agree to do whatever you like regarding the house. If you can’t agree, the Court will decide whether the house will be sold and the proceeds divided, or transferred to you or your spouse, subject to the recipient’s ability to refinance any mortgages and debts. In Maryland, the Court may award use and possession of the home to one party for up to three years from the date of the divorce, and the other party can be required to contribute to the costs of the home until it is sold.

If I sell my house, how do we divide the proceeds?

You and your spouse can agree on how to divide the proceeds. If you can’t agree, proceeds from a jointly titled home will be equally divided; however the court may order one person to make a payment to the other at the time the proceeds are divided in connection with the overall division of property to account for an “equitable distribution” of property. “Equitable” does not always mean equal – who gets what depends on the courts consideration of a variety factors – some of which include the duration of the marriage, each party’s age, health, financial circumstances, and contributions to the marriage and property, and the circumstances that contributed to the divorce.

What if my house is only in my spouse’s name?

Whether your home is only titled in your spouse’s name does not affect your interest in the home if it was acquired during the marriage and with marital funds. However, it does allow your spouse to control certain things regarding the house if you do not have an agreement or court order. And, the Court cannot transfer title to you.

What if I owned my house before I got married? Or, what if I was gifted or inherited my house, or part of the down payment?

This can affect how the proceeds are distributed and/or how the home is treated in divorce. Depending on your specific facts, such as the way the home is titled, and whether or not money earned during the marriage was put into the home, you may have a stronger claim to keep the house without a payment or with a lesser payment to the other person, or you may keep more property in the overall property division or receive a monetary payment.

Can I move out?

Yes, you can leave at any time. But, before moving out you should consult with a family law attorney to determine what effect moving out has on your claims to the home and other issues in your case.

Can I force my spouse to move out?

You and your spouse can agree on who gets to stay in the home and who gets to move out. If you cannot agree, then some courts may order use and possession of the home to one party. The court can also order a party to stay out of the house in which you are living in the event that becomes necessary to ensure your safety and/or that of your child or children.

What’s nesting?

Nesting is when the parties take turns living in the home. Usually parties opt to nest when they have children at home because it allows the children to stay in one place, while the parties take turns in the house with them. While nesting gives the children the stability of having one home, it can be emotionally hard on the parents.

My best advice about your house is try to think about it as an asset – how can you use it to provide the best life possible for you and your kids going forward? Going through separation and divorce is an extremely stressful time, but it is important to look out for your financial best interests and to consult with a divorce attorney who can guide you through the process and advise you about your best options.

Erin Kopelman is a divorce attorney who handles cases involving domestic relations and family law. For more information, contact her at 301-347-1261 or [email protected].