Who Gets The House And Other Property In A Divorce?

December 6, 2023

Close-up,Of,House,Model,With,Red,Roof,And,Gavel,OnDivorce can be a difficult and emotionally draining process. Not only are couples dealing with the end of their marriage, but they also have to navigate the division of assets and property. One of the most significant assets in a divorce is the house, which often raises questions about who gets to keep it and how the decision is made. In this blog, we will explore the factors that influence property division in a divorce and shed light on the various scenarios that can arise.

1. Understanding Community Property and Equitable Distribution:

The first step in determining who gets the house in a divorce is to understand the laws governing property division. Different states follow different principles, with some being community property states and others following the principle of equitable distribution. In community property states, assets acquired during the marriage are generally split equally between the spouses. Equitable distribution states, on the other hand, aim for a fair but not necessarily equal division of property.

2. Considering Ownership and Contributions:

When deciding who gets the house, one of the primary factors courts consider is the ownership and contributions made by each spouse. If one spouse owned the property before the marriage, it may be considered separate property and not subject to division. However, if both spouses contributed to the mortgage payments, renovations, or other expenses during the marriage, the court may find it fair to divide the property.

3. Evaluating Financial Capacity:

Financial capacity is another crucial factor in determining who gets the house. If one spouse can afford to keep the house and continue paying the mortgage and other expenses, they may be awarded the property. However, if neither spouse can maintain the property individually, the court may order its sale and divide the proceeds.

4. Custody and the Best Interests of the Children:

When children are involved, their well-being becomes a top priority. The court may consider factors like the children’s stability, school district, and proximity to their other parent when deciding who gets the house. In some cases, the custodial parent may be awarded the house to provide stability and continuity for the children’s upbringing.

5. Negotiation and Settlement:

Divorce proceedings can be time-consuming, costly, and emotionally draining. In many cases, couples may choose to negotiate and settle property division matters outside of court. Through mediation or collaborative divorce processes, couples can work together with their respective attorneys to reach a mutually agreeable solution. This may involve selling the house and dividing the proceeds or reaching an agreement on who keeps the property.

6. The Need for a Court Decision:

If negotiations fail, or the couple cannot reach a settlement, the decision about who gets the house may be left to the court. In such cases, the court will consider all relevant factors, such as the length of the marriage, the financial situation of each spouse, and any prenuptial or postnuptial agreements that exist. The court’s ultimate decision will be based on what it deems fair and equitable under the circumstances.

7. Tax Implications:

It’s important to consider the potential tax implications of property division during a divorce. The spouse who receives the house may be subject to capital gains taxes when selling the property in the future. Consulting with a tax professional or financial advisor during the divorce process can help both parties understand and plan for any tax consequences.


The division of property in a divorce, specifically the house, is a complex matter influenced by various factors. Understanding the laws governing property division, evaluating ownership and contributions, considering financial capacity, children’s best interests, and the possibility of negotiation or court intervention are all essential aspects of determining who gets the house in a divorce. Seeking professional guidance from an experienced family law attorney can provide invaluable support during this challenging process.

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