Hire Fairfax, Virginia Attorney Afsana Chowdhury to Protect Your Rights
Who gets the house in a divorce? The real estate owned by a couple during their marriage is often valuable in more than a monetary way. It could be worth a significant amount of money if sold, but it may also hold valuable memories. It is not uncommon for there to be conflicts about who gets the house in a divorce. Numerous factors can play a role in deciding who gets the house.
At the Law Office of Afsana Chowdhury, PLC, we recognize how important the house is in the divorce transaction. You may want to keep it to continue to provide a home for your family, or you simply may enjoy the property. Others want to leave it, but they want it sold so that the value can be easily divided among the couple.
Knowing your rights and obligations in the divorce process can help you better gauge what’s likely to occur. Our goal is to provide you with the information you need to make the right decision for your future. Contact us to learn more about your specific needs.
Who Gets the House in a Divorce?
During the divorce process, a judge ultimately has the final say in who gets to keep the house. The home is typically a component of the property division order, which outlines how all marital property will be split.
Virginia follows an equitable distribution process. That means that property is not necessarily divided in half. Rather, the property is split between the spouses in some way that makes it equitable to each party. The focus here is on the finances involved, not necessarily on what you may have put into the home or what you believe is fair.
It is possible for couples to come to an agreement on what they believe is a fair division of their assets. When possible, it is likely beneficial for all involved as it allows you to remain in control over what happens in the future. If that is not the case – and it is often hard to come to an agreement – then the court decides who gets the house in a divorce.
When possible, consider the home carefully. Could you afford to maintain it and pay the mortgage on it alone? Will it be an asset you wish to pass down to your heirs later? Would it be better to sell it and start over? It’s not an easy decision, but having the guidance of an experienced divorce attorney and knowing what you want can make it easier to outline reasonable expectations.
How to Keep the House in a Divorce
In situations where one party wants to keep the home, and the other wants to sell it, it may be difficult to reach a compromise. The first step in this process is typically refinancing any mortgage loan to remove the other spouse from the loan. This removes any liability that the spouse has towards the home.
The party that wants to sell the home should receive their portion of the equity in the home. The judge will deem what a fair division of the asset is. Most often, the home is refinanced with a loan for the full value so that the spouse that wants to keep the property can provide the owed equity to the other spouse. Otherwise, cash may need to be transferred between the two to make up for one keeping the property.
Virginia Laws and Splitting the Home
Virginia law requires that property be split in an equitable or fair way. However, this only applies to marital property. Any property determined to be separate property, such as assets you owned prior to the marriage, is not split like this.
If you purchased the home during your marriage, it is likely to be considered marital property. If one person owned the property prior to the marriage, it may be separate property. This includes property obtained through inheritance and gifts – that remains separate property.
What Happens If You and Your Ex Decide to Sell the House During the Divorce?
In the ideal situation, both parties come to an agreement about the sale of the home. When this is possible, the court will likely honor the decision made as long as it is considered equitable. If you both want to sell the home, you can do so during the divorce process. The division of the property is, again, done in an equitable way. That does not always mean an even 50/50 split.
In this situation, once the property sells, the court will split the proceeds from the sale between the two parties. It may be possible for one person to receive more than the other, such as if the other party is receiving other assets.
What Happens if You and Your Ex Both Want to Keep the Home?
There are some situations where both parties want to keep the home. This makes the process more complicated. The first step, in this case, will be to determine if the home is marital property, which is typical if the property was purchased during the marriage. If that is the case, the court must decide what is equitable in this situation.
The court typically takes all property involved and divides it to create an equitable outcome. This means one spouse is likely to receive the home, or the court may determine the home must be sold and the equity split.
What to Do in Your Situation
Who gets the house in a divorce is not always a simple decision. However, having a Fairfax, Virginia, divorce attorney available to help you can ensure your rights are protected in the case. When you work with our firm, we can discuss the legal options available to you. Often, it may be possible to present the court with a plan for the sale of the home or other division of property that is equitable.