The question of who gets the house in a divorce comes up all the time. Find out some of the factors courts consider when determining which party to award the house to.
Always check your state's specific laws
How courts determine which party gets the family home varies state to state. Remember to always check your state’s specific laws. For example, a Colorado court may rule differently on the matter than a court in another state. All of the following scenarios are examples of how a Colorado court could handle allocation of the family home.
Parent with primary care of children
When considering the division of property, courts consider the economic circumstances of each spouse at the time the division of property is to become effective. The Court must consider the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom any children reside the majority of the time. Therefore the parent who has primary care of the children has the advantage.
A court may also consider whether it is financially feasible for the primary parent to maintain the home, refinance the mortgage and pay the obligations related to the home.
No fault divorce vs. fault divorce states
Whether your state is one that grants divorces based on fault, could possibly affect the court’s decision. For example, Colorado is considered to be a “no fault” state. What this means is that if one of the parties is having an affair or has abused the other, the court cannot take that information into account when allocating the assets. However, a court in a state that allows divorces based on fault might possibly assess the situation in a different way.
Gift, inheritance, or owned prior to marriage
If the family home in a divorce was received by gift, inheritance or was owned before the marriage then it will generally be awarded to the spouse who received the gift or inheritance or who owned the home prior to marriage.
Other factors that a court will consider in allocating the family home include the contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as a homemaker.