When a couple gets divorced, they are required to split up their assets. For many couples, the largest asset that they own is their house. Because it is impossible to cut a house in half and highly impractical for a divorced couple to each live in their own separate half of a house, this leads to a large problem. Because of this, in a divorce, who gets the house?
To determine who gets the house in a divorce, we must first define how assets and property are treated in a marriage and a divorce. Generally, in North Carolina, any assets or property that are acquired by the couple during their marriage are considered martial property. Additionally, property that is not acquired during the marriage is considered separate property. Typically, because most couples wait until after they are married to purchase a home, their home will be considered marital property (unless one spouse owned a house prior to the marriage). As such, the couple must determine who gets the house or how to split it. In North Carolina, a couple is free to determine how to split their assets outside of court. Because of this, in certain situations, one spouse can negotiate a buyout of the other spouse’s share of the house. However, most couples are unable to do this due to financial constraints.
If the couple cannot determine how to distribute or split the house, they can have a court make the decision for them. In North Carolina, courts follow the doctrine of equitable distribution or equal division. In following this doctrine, judges can choose to force a sale of the house, offset one individual’s share of the house by giving that individual an equal value in other assets, or order that one party retain ownership of the house. Although a judge will be the one making this decision, the judge will not be making this decision solo. Instead, the judge will hear arguments from both sides as to which way the judge should make the decision.
Factors Affecting the Judge’s Decision
When a divorcing couple requires a judge to divide their marital assets for them, the judge will consider several factors in making a decision on the couple’s home. One of the most important factors is the existence of children. If the divorcing couple has children, the judge will take into account which spouse will have custody of the children. Because leaving the family home will be difficult on the children, judges tend to favor leaving the house in possession of the spouse with custody. However, the court will also consider whether that individual is capable of paying for the house. Although it is unlikely that one spouse will be able to pay for the house by themselves, after factoring in the potential of alimony, they may be able to continue to afford the house, but on the other spouse’s dime.
Contact Us at the Minick Law Firm to set up a compassionate and personalized consultation with one of our Divorce lawyers. After speaking with one of our lawyers, you will know the legal standing of your situation and what is best for you.