What Does Divorce Mean For Your Home?

“What happens to the house?” is usually one of the first questions that come to mind when getting separated or divorced – and for good reason – your home is usually one of your biggest assets and can be a source of comfort and stability.

For many, the thought of leaving their home, packing up their life, and selling or leaving it in the hands of their soon to be ex-spouse, is daunting when layered on top of an already stressful and uncertain divorce process.

If you and your spouse can agree on the fate of your home, you have the opportunity to enter into a tailor-made agreement that covers all the details. Importantly, this doesn’t require that you wait until the divorce is final.

If you and your spouse cannot agree and you are looking at a contested divorce case, with a trial a year or more away, you are bound to face some challenging questions and decisions about your home long before it ends. Who is going to live there in the interim? Who is going to pay for it? At the end of the entire process, the court will decide what will happen to your home – and the court has limited options:

  1. Order the sale of a jointly titled home and the equal division of any sales proceeds;
  2. Transfer title of a jointly titled home to one party provided the recipient spouse has the ability to refinance any mortgages and debts into their sole name;
  3. If the home is titled only in one spouse’s name, the court cannot transfer title to the other spouse. However, if the home was acquired during the marriage with marital funds, the non-titled spouse has a martial property interest in the home. The court may order the spouse who owns the home to make a monetary award payment to the other spouse in consideration of their interest in the home and as part of the overall equitable distribution of marital 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.
  4. In Maryland, regardless of title, if the couple has minor children, the Court may award use and possession of the home to the custodial parent 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 at the end of the use and possession period.

Most couples do not continue to live together while the divorce is pending, especially if the case is contested and in litigation. What can and cannot happen to your home during that time? And how does it affect other parts of your case? If you cannot agree, consider that prior to the actual divorce, the court cannot:

  • Force you or your spouse to sell your home;
  • Force you or your spouse to refinance any debt associated with the home;
  • Force your or your spouse to move out. There are two exceptions to this: if there is an order of use and possession of the home to one party, or a party is ordered out of the home incident to a domestic violence protective order;
  • Force you or your spouse to pay the mortgage unless a party is ordered to contribute to the costs of the home where one party is awarded use and possession.

If you want to move out, you can do so 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. Payment of the expenses related to the home, in terms of the actual cost and who makes the payment, may have an impact on the alimony or child support claims in a case. If you move out of the home and your children stay in the home with your spouse, you may need the Court to order an interim time sharing arrangement for you and your children.

To read about what happens to your vacation home in divorce, check out “What Does Divorce Mean for Your Vacation Home?

Erin Kopelman is a divorce attorney who handles cases involving domestic relations and family law, including custody and visitation. For more information, contact Erin at [email protected].