Divorce lawyers often see a fair share of controversy over the marital home. The house is visible, valuable, and emotional. There are good reasons to stand your ground: continuity for the children, emotional attachment, and sometimes even convenience. There are also some not-so-good reasons: vindictiveness, ego gratification, and just plain greed.
Courts take into account many factors before deciding who gets the house. They include the “Good Reasons” listed below and bad reasons, such as when a physically abuse spouse wants the house or when someone who abandons his family later returns to claim the home.
Many states have divorce-related automatic restraining orders that prohibit the sale or mortgaging of the marital home. Even if the property is only in your name, you are not allowed to sell or encumber the home without spousal or court approval. Also, your spouse may file a “lis pendens,” a lien saying that there is a claim on the title.
Divorce Tip: 1) You don’t want a stranger in a black robe (the judge) making your decisions, and 2) only your attorney can properly advise you given your particular circumstances and your state’s law. Whatever the law, ideally the decision regarding the house should be based on mutual agreement, without court intervention.
If you have one or more of the "Good Reasons" listed below, then you can take the next step in deciding whether it is economically feasible to keep the house.
Good Reason #1: The kids – school-aged children are often traumatized by a divorce, and moving can compound their emotional distress. However, sometimes a fresh start might be emotionally healthy, so speak with a child psychologist if you aren’t sure.
Good Reason #2: Sentimental or emotional attachment – for example, if you were the stay-at-home spouse and you’re emotionally attached to the house. Similarly, an attachment might exist if the house belonged to your parents or a relative before you were married.
Good Reason #3: House as settlement tool – the division of marital assets should be acceptable to both sides. You can use the house as a bargaining chip, or “settlement tool.”
Divorce Tip: If you are going to fight, make sure it is for the right reasons and that you can afford the house.