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Submit Close Considering Divorce? We've helped 85 clients find attorneys today.When you and your spouse own your home, the question of what happens to the family home when you divorce can be a thorny issue. If you're like most American homeowners, the property is probably your most valuable asset—which can make it difficult to achieve a fair overall division of your property.
In addition to financial considerations, there are emotional consequences to selling, keeping, or giving up the family home. Here are some things you should think about if you're hoping to keep the house after your divorce.
There are plenty of bad reasons to fight over the family home, including spite, control, vindication, and greed. While it may be hard to leave your home, you need to consider what's best in the long run for you—and your children, if you have them.
Still, you might have good reasons to stand your ground if you want to keep the family home after your divorce. But you should be clear and honest with yourself about your reasons (and what's behind them), because the consequences of fighting to stay in the house can be far-reaching and long-lasting.
If you'll be the primary custodial parent after your divorce, you can argue that it's in your kids' best interests for you to get the family home so they can stay there with you.
Divorce can be stressful for school-aged and younger children. Being forced to move from the home where they've been living can add to their emotional distress, especially if that also means changing schools and moving away from their friends and after-school activities.
If you'll be the primary custodial parent after your divorce (meaning your children will live with you most of the time), you can argue that it's in your kids' best interests for you to get the family home so they can stay there with you. If you need support for this argument, you might seek a custody evaluation and ask the evaluator to specifically address the potential impact on your kids of any disruption in their living situation.
Some state laws allow (or even require) judges to consider the effect on children when they're deciding what to do with the family home. For example:
Understandably, you may have strong emotional connections to your family home. Maybe you've put a lot of work into building or renovating your dream house, or the property has been in your family for generations.
However, emotional attachment to a house isn't necessarily a good reason for trying to keep it after your divorce. You should think long and hard about the consequences of a legal battle if you and your spouse can't agree on the issue, as well as the potential downsides of staying in the home as a newly single person (more below on both of those issues).
One of the top financial mistakes that you can make in a divorce settlement is to fight for the family home when you won't be able to afford it.
Unfortunately, you need to balance your desires against the financial realities of life after divorce. You probably already know that it costs more to maintain two households than a combined one.
One of the top financial mistakes that you can make in a divorce settlement is to fight for the family home when you won't be able to afford it. If you have to refinance the house to buy out your spouse's interest in the house, you could find yourself unable to afford the higher mortgage payments. And if you trade other important assets (like retirement accounts) for the buyout, you might run into problems trying to remove your spouse's name from the mortgage.
You also need to consider whether you'll be able to afford to pay the other expenses of owning a home, including:
No matter how attached you are to your home, it's critical to have a realistic picture of what you can afford. It may be wise to speak with a financial advisor who can help you determine whether you would be able to cover the expenses of the home after the divorce and still meet your other financial needs (such as saving for retirement).
Couples can—and usually do—manage to agree on how to divide their property during divorce. Taking this route has several advantages. For instance:
If you and your spouse absolutely cannot agree, a judge will hold a trial and decide for you. When that happens, the judge will follow your state's laws on dividing property in divorce.
Very few states require a strict 50/50 split between spouses, but most judges will aim for an approximately equal division unless that wouldn't be fair under the circumstances. That means that judges will often order couples to sell their house and divide the proceeds when they don't own enough other assets to balance out the property distribution if one spouse keeps the house. That could be the outcome even if it's not a good time to sell.
In some states—like California—judges may decide to order a deferred sale of the family home to allow the custodial parent to stay there with the children, if that would be both economically feasible and necessary to minimize the negative effects of the divorce on the kids. (Cal. Fam. Code §§ 3800–3810 (2024).)
It's common in divorce cases for courts to issue temporary restraining orders that prohibit either spouse from selling, transferring, or mortgaging the marital home during the divorce proceeding, without the consent of the other spouse or a judge.
In some states, these orders are automatically effective as soon as one spouse files for divorce and serves the divorce papers on the other spouse. In other states, either spouse may apply for the order. Either way, you may not be allowed to sell or encumber the property even if it's in your name alone.
If you and your spouse are having trouble agreeing on what you'll do with your home when you divorce, a mediator can help you identify the sticking points and come up with solutions that work for both of you. (Here are some tips on how to propose mediation to your spouse and how to find a good divorce mediator.)
But if mediation doesn't work or isn't appropriate in your situation (such as when there's domestic violence or a serious power imbalance between you and your spouse), it's best to consult an experienced local family law attorney who can help protect your legal rights and financial interests, as well as the best interests of any children you have living at home.
Also, if you're thinking about co-owning your home after the divorce, you may want to consult with a tax advisor (or a lawyer with specialized knowledge in this area) to learn about the tax consequences.