If your house is a marital asset, it is subject to division in the divorce. It does not matter if your name is on the deed or not (but, if you don’t know, you should take a trip to the County Clerk to find out).
There are three options that are the most common. First, if you have children in the school district where the home is located, Courts often try to keep the residential custodial parent in the home so that the children can finish school there. This allows the children to stay with their friends, teachers and activities. In this situation, the house is usually sold when the youngest child graduates high school, and the proceeds are shared between the parties. This option only can work if the residential custodial parent can afford to pay the expenses on the house, like the mortgage and utilities. Child support would also be awarded to help make this possible.
The second option is that one party buys out the other party’s interest in the home. This is done by calculating the net equity in the home by taking the value of the home (often determined by an appraiser), less any mortgages or separate property credits. To buy out the other party, you can refinance the property, or use other assets to offset the other person’s share of the equity.
The last most common option, is the least common of the three when there are young children. The house is immediately sold at the time of the divorce. If both parties have the desire and financial ability to each obtain a new residence, whether purchasing or renting, they may choose this option. Sometimes this is the only plausible option if the residence has significant equity and there are little or no other assets. This would enable both parties to get their hands on much-needed cash that is tied up in the house. Or, if neither party can afford to maintain the high cost of a residence on their own, downsizing might be the best option.
If your house is not a marital asset – you or your spouse owned it before the marriage – it is unlikely that the Court will allow the other spouse to stay in the house after the divorce. But the Court may order that the residential custodial parent have exclusive occupancy of the house while the divorce is pending. That way the children are not forced to move from their home until the divorce is final.
An experienced family law attorney can assist you with deciding what you want to do with the house, and determining if it is financially possible.