When going through a divorce, you will likely have many questions and fears about how your property will be divided. People will often ask, “Who gets the house in a divorce?” Let’s start answering this question by defining just what “marital property” is. Marital property is any asset you and your spouse acquire during the marriage. The term for the home you live in with your family is the “marital home.”
If you and your spouse can agree to who will keep the marital home, then the divorce decree will reflect that decision. However, be aware that if you and your spouse decide that you will keep the house, you will usually have to compensate your spouse for their portion of the equity in the house. You should make sure you are able to afford to keep the house on your income alone and that you may have to pay your spouse for his or her equity in the home. There are a lot of reasons why you might want to keep the family home, but make sure your judgment is not clouded by the emotions that run high during the stressful and painful times of a divorce.
In Alabama, the courts divide marital property equitably. Equity does not always mean 50/50 division of marital property. There are many factors which contribute to how marital property gets distributed in a divorce. Some of those factors are you and your spouse’s work history, income, any property you or your spouse acquired by yourself or his or herself solely, each spouse’s age and physical and mental health, which parent has custody of the children, the value of the martial home, and any misconduct in the marriage. Be aware that often the parent with custody of the children will be awarded the marital home as to keep the children less affected by the divorce proceedings.
A judge might also award you and your spouse a share in the marital home. This process is called awarding distributive shares. If this occurs, then the judge may require one spouse to “buy out,” or pay for, your spouse’s share of the marital home. The judge could also award you or your spouse exclusive possession for a limited period of time, and then the judge would require you or your spouse to sell the home by a certain date. Exclusive possession means that you or your spouse would occupy the marital home without the other spouse living there. The judge could also require the house to be sold and the proceeds divided equitably. Finally, the judge could award the home to one spouse and offset the value of the home awarded to the occupying spouse by awarding other property to compensate the spouse who does not get to keep the home.
Deferred distribution is the final way which the marital home may be awarded. Deferred distribution occurs when the judge awards you or your spouse the home until an event occurs. For example, that event could be until your youngest child graduates from high school. Deferred distribution is not common, but may occur when the housing market is not very seller friendly.
With all the possibilities of what could happen to the marital home, it is difficult to predict who will get to keep the marital home. In Alabama, it is common for the spouse with custody of the children to get to keep the marital home. However, that is not the end all be all. The factors listed above weigh heavily into the judge’s decision. If you can agree with your spouse without the judge’s intervention, you will likely have a less stressful divorce experience and will have more comfort during the process. Before deciding what to do about your marital home, give our divorce attorneys a call today for a quick consultation.