Be careful how you negotiate for the family home in a divorce

One of the most common issues that arises when spouses divorce is “Which one of us gets the house?” Buying a home is a big milestone for many people, and one that can become a source of great grief later on, depending on the circumstances. Various factors may lead to a number of different decisions by a judge if you are unable to reach an equitable agreement when negotiating a divorce settlement. Furthermore, it is possible that a judge may throw out your settlement if he or she deems that it is unfair for some reason.

In some instances, the matter is quite simple. If, for instance, one spouse bought the home and did not use marital assets to make the purchase, then that person will usually have no problem keeping the home that he or she bought, as long as there are no children in the marriage. If there are children in the marriage, the marital home usually will be given to the parent who is tasked with the primary raising of the children.

If there is no clear-cut winner in the conflict, things can get quite messy. In many cases, spouses who are divorcing find it impossible to live in the same house and keep things civil. Obviously, at some point, one or the other will have to move out and get on with building another life. However, if neither person has a clear right to the home, until a judge rules on the matter, neither person can force the other person to leave, legally speaking. Tactics such as changing the locks or locking a spouse out of the house are not legal and can backfire. Similarly, if one party alleges abuse on the part of the other party that is not true, this may backfire tremendously in court.

If both spouses are legal owners of the house, or if it was bought with marital assets, then the home may be negotiated for against other marital assets, or the party who keeps the home might consider buying the other spouse out of his or her share in the home. Each couple’s situation is different and must be considered fairly on its own merits. If you are facing this dilemma, an experienced attorney can guide you through this difficult season and see that your rights remain protected.


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