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What happens to the house during a divorce battle?
In a divorce, the house is considered a marital asset, even if it was purchased before the marriage.
This means it must be divided equitably between the spouses.
If the house was purchased during the marriage, it is presumed to be jointly owned, regardless of whose name is on the title.
This is known as "joint tenancy."
Judges have significant discretion in how they divide the house in a divorce.
Factors like length of marriage, financial contributions, and custody of children can all influence the decision.
In community property states, the law requires a 50/50 split of all marital assets, including the house.
This is not the case in equitable distribution states, which aim for a fair but not necessarily equal division.
One spouse can be awarded the house, but they must then "buy out" the other spouse's share, usually through refinancing or a lump sum payment.
Courts may order the house to be sold and the proceeds divided, especially if the spouses cannot agree on who should keep it.
Custody battles can complicate the division of the house, as courts may award it to the spouse who will have primary custody of the children.
The mortgage on the house is also considered a marital debt, so the responsibility for paying it off must be determined during the divorce proceedings.
If one spouse has made significant financial contributions to the house, such as a large down payment or renovations, they may be entitled to a larger share of the equity.
In some cases, the court may allow one spouse to remain in the house temporarily, such as until the children reach a certain age, before it must be sold or transferred.
Divorce mediation or collaborative law can sometimes help spouses avoid a lengthy and costly court battle over the house, by facilitating a mutually agreeable solution.
The tax implications of keeping or selling the house can also be a significant factor in the division of assets during a divorce.
If the house is underwater (the mortgage value exceeds the current market value), this can complicate the division process and may lead to the decision to sell the home.
In cases where one spouse has a stronger emotional attachment to the family home, they may be willing to trade other assets in order to retain possession of the house.
The presence of any outstanding liens or encumbrances on the house, such as home equity loans or second mortgages, can also impact how the property is divided.
Divorcing spouses may need to consider the long-term maintenance and upkeep costs of the house, as well as the potential for future appreciation or depreciation, when deciding who should keep it.
If the house was inherited by one spouse, it may be considered separate property and not subject to division, depending on the laws in the state where the divorce is taking place.
In some cases, the court may order the house to be sold and the proceeds placed in a trust or escrow account, to be divided at a later date or used for the benefit of any children involved.
The decision of who keeps the house can also be influenced by factors such as the ability of each spouse to afford the mortgage payments and other housing costs.
Divorcing spouses may need to consult with real estate professionals, financial advisors, and attorneys to fully understand the implications of keeping or selling the family home during the divorce process.
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