REAL ESTATE

Getting a Divorce? Here's Why You Might Not Get the House

Getting a divorce? will you get the house?

Getting a divorce? will you get the house?  (maxsattana)

Divorce may be on a three-decade decline in America, but as Angelina Jolie can attest, irreconcilable differences still drive formerly loving couples apart.

You may not have properties in Los Angeles, New Orleans, Italy, and the south of France, like Jolie and her soon-to-be-ex, Brad Pitt, but when any homeowning couple break up, the biggest question is usually "Who gets the house?"

Not only is there an emotional attachment to home, it's also typically the largest asset that a couple own. And more often than not, couples are able to reach some sort of agreement about their place. They might decide to sell and divvy up the proceeds, or one spouse might buy out the other's share.

But sometimes, things aren't so simple. Occasionally, they get downright nasty. (See "The War of the Roses.") There are cases in which a judge has to decide how to divide any and all marital property, including the home.

While divorce law is still state-specific, here are some issues that a judge will likely take into consideration when deciding which spouse gets the house. Here's what you should consider if you want to keep your home after the split.

Issue No. 1: A judge can force you to sell

The judge in your case might opt for the simple solution of forcing a sale of your home, with the profits to be split between you and your ex-spouse. But that doesn't mean the profits will be divided evenly. Who gets what depends on things such as who put more money into the home and who paid for any improvements.

"It is always best to reach an agreement with respect to asset distribution," says Bruce Ailion, a Realtor and nonpracticing attorney in the Atlanta area. "Fighting costs money, and you place your life in the hands of a judge. Like it or not, what the judge decides is what you live with."

Issue No. 2: What's best for the kid(s)

In every state, judges are bound to work for the "best interests of the child" in making determinations about the divorce. This means that judges will usually try to ensure the children's lives are disrupted as little as possible. So whichever spouse is awarded primary custody will likely get the house, too (if this spouse can afford it), because it will mean the kids won't have to change schools and will remain near friends.

Of course, the court isn't going to give the home to a spouse who can't afford it -- although when it comes to affordability, spousal support and child support payments will be factored in as well as salary.

"If the party that wants the house simply cannot afford it, then it makes no sense to award that party the marital home even if that is the party who will be awarded majority time with the children," says George A. Melendez, a family law attorney in the Tampa Bay, FL, area.

Issue No. 3: Other factors that may sway the judge

If it's a property that has been in one spouse's family for generations, or was passed down as part of an inheritance, a judge is more likely to award it to that person, even if both spouses have their names on the deed.

If there is an asset with similar value to the home, such as a 401(k), the judge may award the 401(k) to one spouse, and the home to the other. But if you're crossing your fingers for the home, think carefully.

"The house requires maintenance and upkeep to maintain value, and the 401(k) doesn't, so financial advisers often recommend against that," says J. Kim Wright, a North Carolina family law attorney.

Issue No. 4: Working out a cooperative agreement

Remember that before there's a court order in place, you and your ex can divide the house any way you want.

For instance, Ailion is seeing more and more agreements where a couple remain on the property after a divorce, particularly if they have children. One spouse might live in a basement or guesthouse while the other has the main residence.

In other cases, one spouse leaves every couple of weeks to stay with family or in a nearby apartment.

"Obviously this requires a low-conflict divorce, a focus on the best interest of the child, and cooperation," Ailion says. "The point here is that if you can reach an agreement, you control the terms."