One of the most contentious and emotionally charged issues in divorce can be what happens to the marital home. While a home is often the biggest investment of a couple’s life, for many people it represents much more than a financial asset. It’s a place of comfort and security and a place where memories were made and children were or are being raised. It isn’t surprising that decisions about who gets the marital home—if either spouse–can be an area of considerable contention in divorce.
OPTIONS FOR THE MARITAL HOME
Here are some options for what could happen with the marital home in divorce:
One Spouse Buys Out the Other
You may want to keep the home and buy out your spouse’s share. This requires:
- A professional appraisal to determine the home’s market value
- Calculating the equity after subtracting the mortgage
- Paying your spouse their share (either in cash, refinancing, or trading other marital assets of approximately equal value)
Buying out your spouse will require their agreement, or a judge’s order if there is dispute over the issue.
Selling the Home and Dividing the Proceeds
This can be the cleanest option, especially if neither spouse is willing or able to buy the other out. The house is sold, and proceeds are divided. They may be split equally or divided to balance out how other assets have been distributed.
Deferred Sale (Often When Children Are Involved)
In some cases, particularly when children are still in school, the court may allow the custodial parent and children to remain in the home for a pre-determined period. This is also something that can potentially be negotiated in a settlement agreement.
What could happen to your marital home will depend on your particular goals, situation, and negotiating strategy. If you wish to keep the family home or sell it, your family law attorney can advocate for your interests in reaching your desired outcome.
DETERMINING WHETHER A HOME IS MARITAL PROPERTY
Before any decisions can be made about what will happen to the family home, it has to be determined that it is, in fact, marital property, Only marital property is subject to division in divorce. Spouses are entitled to keep their separate property. In very general terms, separate property is property owned before marriage, inherited or gifted to one spouse only, or protected by a valid prenup or postnuptial agreement, while marital assets are those acquired while married.
Here are some examples of when a home may or may not be marital property:
- Home purchased during the marriage: If the home was acquired after the wedding and marital income was used for the mortgage, it’s generally considered marital property—even if only one spouse is on the deed.
- Home purchased before marriage: If you bought the home before marriage, it could be yours alone, unless you continued paying the mortgage or improved the property with marital funds. In that case, all or a portion of the value could be subject to division.
- Inherited home during marriage: Typically, inheritances are separate property. But if you commingled assets to pay the mortgage or used joint funds for upkeep, it could complicate ownership determinations.
If there is any question that your family home is not marital property, consult with your lawyer who can help you determine the truth.
HOW MARITAL PROPERTY IS DIVIDED IN A NEW JERSEY DIVORCE
New Jersey follows a legal principle called equitable distribution when dividing assets and property in divorce. This doesn’t mean a 50/50 split (although it could). Instead, it means a fair but not necessarily equal division based on several factors as described in N.J.S.A 2A:34-23.1.
Some of the factors include:
- Length of the marriage
- Income and earning potential of each spouse
- Contributions (financial and non-financial) to the marriage
- Standard of living established during the marriage
- Custody arrangements
- Each party’s economic needs and responsibilities post-divorce.
You can reach settlement between yourselves about dividing assets. If you can’t agree, a judge will decide after considering the factors under the law. In relation to the marital home, if you wish to keep it, you may be able to work out an arrangement that allows your spouse to get assets of approximately equal value in exchange for the home. The reverse may also be a possibility if your spouse wishes to keep the home and you don’t want it.
ADDITIONAL CONSIDERATIONS FOR THE MARITAL HOME
Following are a few other things to keep in mind in decisions about the marital home.
Prenuptial and postnuptial agreements
If you signed a prenup or postnuptial agreement that addresses the home, courts will usually enforce it—assuming it was properly executed and fair. If you believe the agreement is being misapplied or challenged, as your attorneys, we can evaluate its enforceability.
Disputes over contributions
If you believe you invested more money or sweat equity into the home—covering major expenses, making mortgage payments solo, or performing renovations that increased its value, you may be entitled to a larger share of proceeds.
Tax considerations
Selling or transferring a home may result in capital gains taxes, especially if the appreciation is substantial. Transfers between spouses in divorce are usually tax-free, but we will coordinate with accountants and financial advisors to help minimize long-term consequences.
PROTECT YOUR RIGHTS—DON’T LEAVE THE OUTCOME TO CHANCE
The marital home is more than just property—it can be a cornerstone of your financial future and your relationship with your children. When you are represented by experienced attorneys who will fight vigorously for your rights, whatever your wishes for the family home, you stand the strongest chance for a beneficial outcome.
At [MFR] Men’s & Fathers’ Rights Divorce Lawyers we focus exclusively on helping clients navigate complex family law issues. Our attorneys understand how New Jersey courts approach the issues of the marital home—and we’re ready to advocate for your best interests. Call us at (201) 880-9770 today to schedule a confidential consultation.
