WHICH SPOUSE KEEPS THE FAMILY HOME IN A NEW JERSEY DIVORCE?

It is a common question and one that leads to contention in many New Jersey 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. But the truth is that, while both spouses may want it, only one can have it — and in some cases, neither spouse may end up with the home.

DECIDING WHO KEEPS THE HOUSE

There is no simple or straightforward formula for deciding who keeps the house. While there are several clearly-established guiding principles, these principles could weigh in favor of either you or your spouse depending upon the unique circumstances involved in your divorce.

Sometimes, husbands who are divorcing feel that their wives inherently have the upper hand in many divorce decisions, including decisions related to the family home. It is important to clarify that 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 dividing assets in divorce and determining who gets the house. At the outset, from a legal perspective, both spouses are on equal footing in property division decisions and other issues of divorce. All of the individual factors of your marriage and your divorce will factor into determining who stays in the home.

The following sections discuss things to consider when seeking to keep the family home.

IS THE HOME MARITAL OR SEPARATE PROPERTY?

If you and your spouse purchased your home during your marriage, it will be considered part of your marital estate unless you signed a prenuptial or mid-marriage agreement to the contrary. This means that it is likely considered marital property and probably subject to division in your divorce absent an exception to the presumption.

But what if you or your spouse bought the home before you got married? In that case, it depends. If either of you owned the home outright, it could be deemed “separate property”, but that doesn’t necessarily mean the other spouse is entitled to zero.

As one example, if you made mortgage payments together or upgrades to the house during your marriage, the analysis will be more complicated. Or if you or your spouse owned the house before marriage and later added the other’s name to the property, then that separate property can become marital property under the right set of circumstances.

YOU MAY NOT NEED TO SELL AND SPLIT THE PROCEEDS

Most spouses resolve their property division through settlement out of court. While selling the family home and splitting the proceeds is one option, in many 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, this is a simplified scenario and you have to make sure you are offsetting the same value of funds (meaning liquid money is more valuable than money tied up with a deferment to liquidate in a retirement asset for instance). Most divorces are much more complicated, and mortgage obligations, debt obligations, and tax consequences can factor into negotiations over who keeps the family home as well.

DIVISION OF MARITAL DEBTS

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 and likely will need to refinance the mortgage to remove the other spouse’s name from liability moving forward. On the other hand, the parties could agree to sell enough assets to pay off the mortgage and then split the net value of the home. The list of options goes on and on. Transferring real estate can have tax implications as well, and these also merit careful consideration and collaboration with tax professionals.

THE FAMILY HOME AND CHILD CUSTODY

The family home can also be relevant to child custody. When it comes to custody, New Jersey law has a single focus: protecting the best interests of the children involved. The New Jersey courts consider several factors as spelled out in N.J.S.A. 9:2-4 when awarding custody and parenting rights—factors which include the stability of the children’s home environment, continuity of the children in their current school depending on the age of the children and the ties the children has with that community, etc. While staying in the family home will not necessarily provide the most stability, it is one of several considerations to keep in mind when dealing with property division in your divorce.

WHAT IF WE CANNOT AGREE ON WHO GETS THE FAMILY HOME?

Ideally, you and your spouse will come to agreement between yourselves on the issue of who gets the family home. Divorcing spouses can often negotiate settlements on property and debt division issues with the help of their respective attorneys and/or through mediation. But if you simply cannot agree, the court will make the decision for you at trial.

In New Jersey, judges use the concept of equitable distribution to divide marital assets and debts. Equitable distribution does not mean a 50/50 split, although it could in some circumstances. Rather, property is divided in a manner that is deemed fair to both spouses, although it may not necessarily be an equal division. To determine what is fair, the judge will consider various things such as each spouse’s income and earning capacity, how each spouse contributed to the value of the home and other assets, who has primary custody of children, how long the couple were married, and numerous other relevant factors.

REACH OUT TO AN EXPERIENCED DIVORCE ATTORNEY FOR HELP

Fighting over who gets the home in a courtroom is stressful. An experienced divorce attorney from our Hackensack, NJ, law firm may be able to help you negotiate a satisfactory solution when you wish to keep your home. We have helped many others in similar situations.

Whether or not your case is resolvable through a settlement, it will be crucial to follow a strategy that puts you in a favorable position. We will guide you through the steps forward based on the details of your situation.  Call [MFR] Men’s & Fathers’ Rights Divorce Lawyers at (201) 880-9770 to arrange a confidential consultation.

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