Who Gets to Keep the House in a Divorce?

Divorce Planning: Who Gets to Keep the House

As matrimonial attorneys, we understand that a divorce takes a toll emotionally and financially on our clients. Perhaps the most stressful financial and emotional decision a client must make is how to deal with the equitable distribution of the marital home in a divorce. If the marital home was either: a) purchased during the marriage by one or both spouses, or b) purchased by one spouse prior to the marriage but was used as the parties’ primary marital residence, it is subject to equitable distribution. Because the marital home is often the most valuable asset or one of the more valuable assets in a divorce, a New Jersey court has jurisdiction over the home and any divorce agreement and will address the equitable distribution of the marital home.

Generally, there are two possible outcomes regarding the equitable distribution of the marital home in a divorce, as follows:

  • The parties agree to list the marital home for sale with a mutually agreed upon realtor and share the net sale proceeds; or
  • The parties agree that one will buy out the other’s net equity interest in the home. The buyer will then reside in the marital home with exclusive possession.

Although there are often many emotions involved, the decision whether to sell the marital home or buy out one spouse’s interest comes down to a financial decision: Can the spouse who wants to continue to reside in the marital home afford the payments and refinance the home in his or her sole name? We recommend that clients who are considering a buyout of their soon-to-be former spouse’s interest into the marital home speak with a trusted financial advisor and mortgage lender to determine whether a buyout and refinance is feasible not only in the short-term, but also long-term.

Often, we find that the spouse seeking to reside in the marital home following the divorce is the spouse that will be the Parent of Primary Residence for the parties’ children. Parents of Primary Residence commonly seek to remain in the marital home to provide consistency for their children’s school district, activities and schedules, and if there are any IEPs that the children have with their school(s). Another factor to consider are the children’s ages. Generally, courts will consider a buyout on the marital home, or even a delay in the sale of the marital home, if the children are at or near their senior year of high school.

Taken together, each client’s divorce case is unique and fact sensitive. It is important for every divorce client to understand all possible and available tools to save valuable time, money, and energy when deciding whether to retain the marital home. For more information regarding effective and efficient representation and guidance through divorces in New Jersey, contact the Law Office of Lyons & Associates, P.C. We represent adoptive parents throughout New Jersey and place a premium on personalized service and attention. For a private consultation, contact us online or call our office at 908-575-9777 today.

By: Marissa A. Del Mauro, Esq.