Carla was dead-set on remaining in the marital home through her divorce proceeding and after its end. She didn’t care that the home held some bad memories of their difficult marriage. It was her home, her sanctuary. She had raised their children in the home. Leaving the home would be leaving her cherished memories of those child-raising years. The home fostered her patterns and nurtured her rhythms. If Carla moved, she knew she’d take years to make new patterns and rhythms. And she didn’t want new patterns. She wanted to hold fast to her old patterns, especially in the throes of her divorce.

Property

The residence in which the spouses resided during their marriage, or the marital home, is generally property that divorcing spouses should expect to divide in the divorce judgment. Of course, one doesn’t divide a home. Divorced spouses don’t just each take their own floor or wing of the same home. At least one spouse moves out of the home into a new residence, to form a new household. Indeed, on separation, whether long before or soon before a divorce filing, that is the common pattern: one spouse moves out of the marital home, leaving the other spouse behind in the marital home. That departure leaves hanging the question of who gets the marital home or, if one or the other spouse doesn’t hang onto it, how and when to dispose of the marital home and how to divide the sale proceeds.

Preference

What the spouse who remains in the marital home when the other spouse leaves does, whether to remain in the marital home or to move, too, depends on a range of factors. One factor is, of course, the desire of the spouse to remain in the home. As the above vignette illustrates, some spouses have a fierce desire to remain in the marital home in the event of divorce, whether for their comfort, reassurance, familiarity, convenience, sentiment, or other good reason. Yet affordability can be just as significant of a factor. A spouse may wish dearly to remain in the home but be completely unable to afford its mortgage, taxes, insurance, utilities, and maintenance, within available earnings and spousal support. Married couples grow out of homes, especially when children leave, but also when other circumstances change, including the ability to afford the home within a responsible budget.

Moving

Questions over treatment of the marital home in a divorce proceeding can also center around the timing of the last spouse’s move out of the marital home. As the illustration at the beginning of this chapter again suggests, the throes of a divorce can indeed be a bad time to move out of a home, especially for a spouse who is caring for minor children in the home. Children need stability during divorce, wherever they can find it. Their world can appear to be crashing down. Forcing children to move in the midst of a divorce can undercut the only stability they find, in their physical residence. The custodial parent may strongly prefer to remain in the marital home with the children for the children’s sake, if not also for the custodial parent’s sake. The non-custodial parent may agree or disagree. If the parties disagree over the marital home’s disposition, then the judge will hold the divorce trial or a special hearing to make an appropriate determination.

Award

Whether by the parties’ negotiation and agreement, or after court hearing and order, the divorce judgment will eventually determine the disposition of the marital home. One disposition, as just suggested, is to award the marital home to the spouse who wishes to remain in it. The award may be of the full title to and value of the home, while also allocating to the resident spouse any mortgage debt owed against it. If you want to remain in your marital home, you may be able to gain that outcome, owning the home free and clear of any interest on the part of your spouse, even if you may also then owe the mortgage, taxes, insurance, utilities, and upkeep obligations. 

Adjustment

If you receive an award of the marital home, expect to see an adjustment of the rest of the property division to reflect your advantage. In many marriages, equity in the marital home is the only substantial asset the couple holds. For many married couples, the marital home isn’t just their residence. It is also their first, biggest, and best investment, especially as they slowly pay down the mortgage, improve the home, and see the home’s market appreciation. A home can double or triple in value, or more, over the course of a married couple’s residence in it. If the couple divorces later in life, the spouse who stays in the marital home may have to give most or all of the parties’ other assets, such as brokerage, retirement, or savings accounts and personal property, to the other spouse to equalize the distribution. Beware holding onto the marital home, if other assets would serve you better.

Joint

Alternatively, the judgment may award the home’s occupancy to the spouse who wishes to remain in it, while having the parties continue to share joint ownership interest in the home. This alternative may be most appropriate where the home is the only substantial asset, frustrating equalization of a property division with other assets, and when the spouse remaining in the marital home needs to do so because of children, disability, or other circumstances. Continued joint ownership of the home may keep the divorced parties in closer contact than they wish, over issues like maintenance, improvement, or even mortgage defaults and unpaid real estate taxes. But joint ownership may still be a sensible solution. Eventually, when the marital home sells, either at a date the divorce judgment states or on the occurrence of various events or conditions, the parties can divide the sale proceeds to equalize the property division.

Sale

The sale of the marital home may occur immediately on the parties’ separation before divorce or during the divorce as the parties move into new, separate housing. Or as suggested in the prior paragraph, the marital home’s sale may occur later after the divorce judgment, when the children reach majority or graduate from high school, when the resident spouse remarries, or on other events or occurrences. The marital home’s sale enables the divorced spouses to divide the net sale proceeds as the judgment of divorce may provide. All proceeds may go to one spouse or the other spouse, or the spouses may divide the proceeds equally or in different percentages, depending on the equities and other property division. The sale should be at fair market value. If either party wishes to remain in the home after the date on which the judgment provides for its sale, or to sell the home to an adult child or other friend or relative, the parties may be able to ensure a fair market price for that transaction by a right of first refusal. In that case, the parties would list the home for sale and use the best offer to establish the price for the preferred buyer with the right of first refusal.

Valuation

In the event that the parties negotiate or the judge imposes a property distribution that awards the marital home straight up to the spouse residing in it, then the parties or judge will generally need to place a valuation on the home to adjust the distribution of other property accordingly. It is not unusual, for example, for a homemaker spouse to receive the marital home while the business-owner spouse receives the business. The parties or judge must then value both the home and business to determine whether adjustments in the distribution of other marital property are appropriate to balance their respective values. Real-estate appraisers can value the marital home by comparable sales. Each spouse may wish to retain their own appraiser to ensure a balance of appraisals and a proper valuation. Skilled attorney representation can help you ensure that you get equitable treatment in the award or sale of the marital home and division of its proceeds. 

Maintenance

The spouse residing in the marital home, either during the divorce proceeding or after it under a judgment that gives the other spouse a continuing interest in it, typically has the responsibility to maintain the home. That obligation may include keeping the utilities paid and on so that the home is appropriately heated, cooled, and otherwise secured. The maintenance obligation may also include keeping the grounds mown, leaves raked, drives plowed, and similar outdoor maintenance so that the home retains its appearance and value. The maintenance obligation may also include paying the mortgage and real-estate taxes, and keeping the home insured against fire or other loss or destruction, although interim orders or the final judgment of divorce may allocate payment responsibilities according to the parties’ abilities and the other case equities. Just understand that taking on the marital home can mean taking on substantial other financial and personal obligations, unless otherwise allocated in interim orders or the final judgment of divorce.

Key Points

• The marital home is typically marital property to divide in divorce.

• A spouse may remain in the marital home if affordable and awarded.

• Children and other interests may delay moves out of the marital home.

• A judgment may award sole occupancy but continued joint ownership.

• A judgment may balance the home’s award against other awards.

• Valuing the marital home can be critical when one spouse keeps it.

• The party remaining in the marital home has maintenance obligations.

Read Chapter 16.