It is a common question and one that leads to contention in many divorces: Which spouse keeps the family home? Whether for practical reasons or due to sentimental attachment, it is not uncommon for both parties to want to keep their home after their divorce.
So, when this is the case, who “wins” the family home?
The Family Home and Divorce
There is no simple or straightforward answer. While there are several clearly-established guiding principles, these principles could weigh in favor of either spouse depending upon the unique circumstances involved in their divorce. If keeping your family home is important to you, it will be important to follow a strategy that puts you in a favorable position to keep the home after your marriage is over. Here is a brief introduction to what you need to know:
- New Jersey Law Does Not Favor the Husband or Wife. First, New Jersey law does not favor either spouse in the divorce process—not with regard to custody, not with regard to alimony, and not with regard to the distribution of marital property. At the outset, from a legal perspective, both spouses are on equal footing when it comes to protecting what matters most in their divorce.
- Your Home Is (Likely) a Part of Your Marital Estate. If you and your spouse purchased your home during your marriage, your home will be considered part of your marital estate unless you signed a prenuptial or mid-marriage agreement to the contrary. This means that it will be subject to “equitable distribution” in your divorce. What if you or your spouse bought the home before you got married? It depends. If either of you owned the home outright, it could be deemed “separate property” that is not subject to distribution. If you made mortgage payments or upgrades during your marriage, the analysis will be more complicated.
- You Do Not Need to “Split the Baby.” Most spouses resolve their property division through settlement out of court. While selling marital assets and splitting the proceeds is one option, in most cases, divorcing spouses will agree to give up their rights to certain assets in exchange for others. For example, if your home is worth $250,000 and you have $250,000 worth of other marital assets, one option would be to agree that you get the home and your spouse gets everything else. Of course, most divorces are much more complicated, and mortgage obligation can factor in as well.
- Tax Consequences and Debt Obligations Also Factor into the Equation. Speaking of your mortgage, when dividing their marital assets, divorcing spouses also need to divide their marital debts. This, too, can be done in a number of ways. For example, the spouse who keeps the family home may also agree to take on responsibility for the mortgage. On the other hand, the parties could agree to sell enough assets to pay off the mortgage and then split their remaining property. The list of options goes on and on. Transferring real estate can have tax implications as well and these also merit careful consideration.
- The Family Home Can Also Be Relevant to Custody. When it comes to child custody, New Jersey law has a single focus: protecting the best interests of the children involved. The New Jersey courts consider several factors when awarding custody and parenting rights—factors which include the stability of the children’s home environment. While staying in the family home will not necessarily provide the most stability, it often will, and this is yet another consideration to keep in mind when dealing with property division in your divorce.
Schedule a Confidential Initial Divorce Consultation
If you would like more information about what to expect during your divorce and the steps you should be taking now to help achieve your desired outcome, we encourage you to contact us for an initial consultation. To speak with one of our experienced New Jersey divorce attorneys in confidence, call our Hackensack, NJ law offices at 201-880-9770 or get in touch online today.