Jane-Ashley McMillan, Attorney at Law

Can I keep my home after divorce?

Parting ways with your spouse is only one of several “Goodbyes” a divorce imposes. You’ll also be leaving behind a portion of the assets you and your spouse once shared. For many divorcees, that includes saying “Au revoir!” to your home.

But, since the process of selling and relocating can be costly and time-consuming, you may wonder if there is any way to keep your home during property division. Answering the following questions can help you decide.

Is the property shared?

Any asset that was acquired by either spouse after their marriage should be included in a pot of shared assets that will be divvied up during property division. However, if your house was a gift or inherited property, it belongs to you alone as your separate property, meaning you will not need to split it with your ex.

Outside of these circumstances, your ex-spouse is likely entitled to a portion of the property. This is because any money that was earned after the marriage is considered a shared asset. If shared assets were used to pay the mortgage on a home, then both parties are entitled to a portion of the home.

Are you able to make a fair trade?

If you and your ex are both entitled to your home, you may still be able to keep the property. During property division, your lawyers and a mediator or judge will help the two of you split your shared property in a fair way. If one spouse has a higher income, they’ll be entitled to a larger share.

Many couples choose to sell their home and then split the liquidated profit. However, you can also negotiate to keep your home for yourself if your ex-spouse agrees to get a share of equal value in exchange. Again, depending on incomes, ex-spouses may not need to split their shares equally. However, the split must be equitable, according to the courts.

If this exchange is sensible for you, the next step would be to refinance the mortgage in your name. A Family Law attorney can look over your debts, income and shared property to advise whether keeping the home while giving up other assets is finally feasible.

Are you ready?

Most divorces cost thousands of dollars. This financial strain can make it difficult for divorcing couples to make living arrangements immediately. If this is the case for you, it may make more sense to make a plan for how the property will be handled in the near — but, not immediate — future.

This can also be useful for parents who are interested in using the bird-nesting custody plan to transition their children.

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