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Equitable Distribution vs. Community Property

What happens to the family house in divorce?

If you are about to embark on a divorce or are in the midst of one, and have a home, the future of what might happen to it is probably among your top concerns. Not only is it often one of the most significant assets between spouses, but it has a great amount of sentimental value attached to it as well. If you have children, you might be worried about what will happen if neither you nor your ex-spouse can stay in the house. Can you “buy out” your spouse’s equity interest in the house? How can you get the house if your ex-spouse will not agree? These are just some of the questions you might be mulling over.

Awarding a House to One Party

During the divorce, it is possible for the court to award one spouse exclusive use of the family home. However, one or more of the following must usually apply:
  • There is a history of abuse and fear
  • One spouse is abusive toward the other or the children
  • One spouse has already left the family home and is living elsewhere
Orders regarding exclusive use of the home during a divorce case are temporary and might be modified once the parties reach a final resolution for their case. A home can be awarded to one party during trial as well, but several factors must be considered. This includes:
  • Duration of the marriage
  • Age and health of both parties
  • Contributions each party made to help create the marital estate, including domestic duties
  • Assets of each spouse
  • Chance each spouse has to acquire future assets
  • The needs of the children
  • Each party’s conduct during the marriage
Courts commonly do not award the family home to one party unless one spouse buys out the other spouse’s interest. In cases where there is no equity in the home, the only issue would be how to remove a spouse’s name from the mortgage obligation. If there is equity in the home, the court might provide the other spouse a greater share of assets to make up for their loss of the equity in the home.

Keeping the Family Home

If you are set on keeping the family home, here are some tips to help increase your chances to convince a judge to grant your request:
  • To give the court an idea of the approximate value of the home, provide evidence of the value of the house, along with expert testimony from an appraiser.
  • Why is it in the interest of justice that you retain the family home? You need to give the court as many reasons as possible. If your children have lived in the home for over several years and have lots of friends in the neighborhood, uprooting them might be harmful.
  • Give the court evidence of the current mortgage obligation.
  • Can you refinance the mortgage in your name alone? If so, you need to provide proof. If there is equity, you will need to prove you can afford to buy out your spouse’s interest.

Sell it Later

Another option is for you and your spouse to agree to sell the house later if you would rather wait for more equity to be built, or for the housing market to improve. It is important, however, to realize this is a business partnership, so try to leave your emotions out of this equation. Neither party has to live in the home if you choose this option. You can rent it to a third party and try to score a profit from it, while both you and your spouse choose other cheaper living options. Establish a joint business banking account for the rent receipts and agree ahead of time on what your contribution shares will be if the account falls short, or how the proceeds will be divided when the house is sold. It is also possible for one spouse to remain in the home as a tenant, paying rent at a fair market rate to the joint business account. When divorcing spouses opt to sell their home later, they both share the risks associated with this decision, such as:
  • Structural risks such as undiscovered problems like mold or faults in the home’s foundation
  • Market risks such as fluctuations in the value of the home
  • Hazard risks such as natural disasters like fires, flooding, or a tornado, which might not be fully covered by insurance

Property Division Lawyers in Jackson

At Shows Law Firm PLLC, we understand that property division is often a primary concern for divorcing couples. It is important for you to take the proper measures to protect your interests and we have the experience to help you do exactly that. Our law firm has represented clients from diverse economic backgrounds and is prepared to handle all types of challenges that might arise. Should your case go to litigation, we are prepared to aggressively represent you and protect your rights to ensure fairness throughout the process. Divorce can be complicated due to the number of factors involved, but our Jackson property division attorneys can help you come up with a plan that works for you and allows you to obtain your goals. Contact the divorce attorneys at Shows Law Firm PLLC today at (601) 664-0044 to set up a free consultation. You do not have to endure this alone.


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