Over the past 25+ years of practicing family law, a common question we get is whether or not someone will be forced to sell their home in a divorce, and we understand how important your home may be to you. The family home is often the place where your children grew up and where happy memories have been made, and often at least one spouse is interested in retaining the family home after a divorce.
Determining who will keep the family home in a divorce is often one of the most difficult and contentious divorce decisions, not only because of the sentimental or emotional value of a home, but also because a home is often a family’s most valuable financial asset.
Who Gets to Keep the Home in a Divorce?
There are several factors a court will look at when determining which spouse will keep the home, including whether or not both or either spouse can afford to keep the house following the divorce and where the children will live following the divorce.
California is what’s known as a “community property” state. This means that it is assumed that property (including the family home) purchased or acquired during the marriage is shared by both spouses equally (hence the term, “community”). Property that was acquired by gift or inheritance may be excluded from this rule. In many divorces, the family home was purchased during the term of the marriage using the communal funds of both spouses. In these cases, the home is community property and both spouses share an equal legal interest in the home. Many cases however, have more complicated facts, which is why it’s important to retain an attorney who is experienced in family law.
If your home is community property and you want to keep it following the divorce, you have several options, including “buy-out”. In order to retain the home in a buy-out, the spouse staying in the home will need to pay the other spouse his or her share of the value of the property and will need to refinance any existing mortgage(s) on the home so that the spouse who is not retaining the home is removed from the mortgage(s).
The decision to retain, buy-out or sell your family home to a third party in a divorce proceeding is a complex one. Call our office today to speak to our experienced family law attorneys, and for a free case review and consultation.