People work hard in this country to acquire and maintain their family home. In most families, the family residence is the most significant asset, both from a financial standpoint and from an emotional standpoint. In addition, the mortgage obligation that is tied to the family home is almost always the most significant debt of the family.
It makes sense that when parties divorce, the house is the primary concern for at least one of the parties, if not both parties. What will happen with the children if neither party can stay in the house? How does a spouse go about trying to get the house in the divorce case if other party won't agree? How can a party "buy out" the other party's equity interest in the house? If there is a trial, what happens to the family house? Is there a way to defer the sale of a family home until a later date? These are all great questions that this article addresses.
In some circumstances, the court can award one party exclusive use and occupancy of a family residence during the divorce. In these cases, usually there needs to be one of the following:
Domestic abuse by one party against the other or upon children;
A history of abuse and fear; or
One party has already left the family home and is living elsewhere.
Typically, the family court will only order exclusive possession of a house upon a motion by the party seeking use of the home. Orders for use of a home during a case are temporary only, and may be modified when the parties finalize their case.
In some states, including Massachusetts, the court has the "equitable" power to award a family residence to one party over the other. In doing so, courts consider the following factors:
Length of marriage
Age and health of the parties
The extent to which the parties helped create the marital estate, including one party's domestic duties in raising children
The assets of each party
The chance to acquire future assets
Needs of children; and
Conduct of the parties during marriage.
It is rare that a court would allow one party to keep the family residence without "paying" or buying out the other party's interest. If there is no equity in the home, then the only issue is how to remove the other party's name from the mortgage obligation. If there is equity, the court may consider providing the other party more of other assets to make up for their share of the equity in the home.
If your goal is to keep the family home, follow these tips to give yourself the best chance to convince the judge in your case to grant your request:
Provide evidence of the value of the house with expert testimony from an appraiser. This gives the court an idea of the approximate value of the asset to be divided.
Provide the court with as many reasons as you can as to why it would be in the interests of justice to allow you to retain the house. For example, "Our children have lived in this home for 10 years and they are entrenched in their schools, they have many friends in the neighborhood," and so forth.
Provide evidence of the current mortgage obligation.
Provide proof that you can refinance the mortgage into your name alone and, if there is equity, you can afford to buy out the other party's interest.
In most states, the court has the ability to defer the sale of a family residence until a later date. Almost always, such an order would center on the needs of a minor child to stay in that family home for some period of time to finish high school or some similar reason.
A full article on this topic can be found here.