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Will I get to keep my house in my divorce?

One of the biggest adjustments that two people make after a divorce is moving out and living alone after sharing a home during their marriage. Even if a couple was living separately prior to the divorce or couldn't stand to be in the same room as each other, formally moving out of the family home or selling it can be more overwhelming than many people anticipate.

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There can be considerable ties to a marital home. On an emotional level, it can be a place of comfort and familiarity. On a physical level, it can be the result of hard work and a tangible sign of success. On a financial level, it can be the most expensive asset a couple has and a huge financial investment. Because of all these ties, many people often wonder if they can - or should - try to keep the home in a divorce.

Generally speaking, a home will be considered community property unless only one person's name is on the title and no community funds were used to support the home. In California, all property owned by the community (the marriage) belongs equally to both spouses. This means that the value of a home will belong to each spouse equally.

This gives spouses a couple different options: they could sell the house and split the profits or one spouse could buy out the other and keep the home.

Every situation is different and there is no one right solution in this situation. However, there are things to consider if you are deciding whether to sell or keep your house in a divorce. Do you have kids who would benefit from staying put after the divorce? Can you as an individual afford to pay the mortgage and bills to maintain the home? Would keeping the home make it difficult to move on after the divorce?

Buying a spouse out does not necessarily mean one spouse paying the other half the equity in the home. Spouses can offset the buy-out cost of the home by giving their spouse a larger share in another asset. If the home has enough equity in it, a spouse can get a line of credit against the home or a second mortgage to buy their spouse out. It is important to remember though, if both spouses are on the mortgage it may be very difficult to remove the spouse giving up the home, even in that case of a buy-out. If the spouse doing the buy-out cannot qualify to carry a mortgage in their name alone, the spouse giving up the home will have little inventive to stay on the mortgage of a home in which they are relinquishing interest in.

An attorney familiar in California property division laws and options can help you address these questions and determine what is right for you. He or she can also provide critical support and guidance as you go through the legal process of seeking the desired outcome in court.

Source: California Courts, "Dividing Property and Debts in a Divorce," accessed on May 7, 2015

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