The answer you will hear from lawyers is universal: “It depends.”

In the majority of cases, the primary caregiver often gets the house in a divorce. But, this is not always the case and the issue of who gets the house often comes down to the decision of the court based on the specific circumstances of your case. 

Time Periods to Consider

When deciding on what to do with the house in a divorce, you want to consider:

1. Who should stay in the house temporarily before the divorce is finalized?
2. What will happen to the house after the divorce is finalized?
3. Who will pay the mortgage and insurance on the home? 
4. Is there alimony in this case? 
5. What was the marital lifestyle of the couple and can that be maintained post-divorce?

Children are a large part of the consideration here. If they are school-aged, there is usually a belief that remaining in the house, at least while the divorce is in process, is in their best interest. Courts usually want to keep things as consistent as possible for the children so keeping the kids in their home while the divorce is being settled is common practice.

Possible Arrangements when Considering Children

Now, once the divorce is being finalized, there are many compromises that are frequently made to keep things consistent for the children, and there is no judgment - what works for your family is what works! A few examples of common arrangements are:

1. Allowing the primary caregiver to remain in the house until the children graduate high school, then, requiring that the property be sold and the proceeds divided.
   
   
2. Allowing one spouse to keep the house and “buy out” the other spouse’s equity with cash. The person keeping the house can get the money needed for the buy-out by refinancing the property, obtaining a second mortgage, or getting a loan. 
   
   
3. Allowing one spouse to keep the house in exchange for other assets, such as retirement assets or other property. 
   
   
4. Keeping the children in the house, but each parent alternates in the house. For example, mom will spend a week with the children in the house, then the next week dad spends the week with the children in the house. This arrangement works better where the house is paid off and the parents can afford separate residences. 

These are just a few examples, but you and your spouse can come up with any arrangement that works for you both. 

Some considerations to keep in mind when deciding on an arrangement are:

1. Can I afford the house (mortgage, insurance, utilities) on my own?
   • Are there any alimony or child support payments to consider?
   • In addition to the mortgage, can I afford the property tax and maintenance of the home?
2. What are the tax implications?

Now, if an arrangement cannot be made between you two, then the court will have to decide what happens to the house. 

Court Decides

The first consideration the court must look at is whether the house is marital or separate property. Separate property usually refers to items bought before the marriage and kept separate, items designated as separate by a prenuptial agreement, or items bought during the marriage that were clearly and intentionally treated as separate. 

If one spouse received the property through inheritance or gift, and didn’t jointly title the property with their spouse, they may be able to keep the property as separate. 

Now, there are situations where the waters get muddied. 

If one spouse purchased the house prior to marriage, but then got married and the couple lived there as their marital home, this muddies the waters a bit. In this case, the court will often look at how long the purchaser lived in the house prior to the marriage, how long the married couple lived there, whether the deed was amended to include both spouses, whether the other spouse contributed to the mortgage/upkeep/remodeling of the home, etc. 

In other cases, people use separate property (gifts, inheritance, separate bank accounts) to contribute to the down payment of a house, the mortgage, or home improvements. 

Analysis of cases like this are done on a case-by-case basis because the decision is going to be based on the specific and detailed facts of each situation.

Conclusion

Whether you keep your house after a divorce is complicated and there is no one-size-fits-all answer. With so many variables to consider, hiring an experienced divorce attorney makes all the difference.