- Who gets the marital home?
- Do state laws impact this?
- What happens to your mortgage after divorce?
- How do you update the title?
- FAQ
In a divorce, the marital home is often the largest asset. Deciding who gets the home and what to do with the property title after divorce is a complex process.
Who gets the marital home or other shared property in divorce?
The manner in which marital property is divided in a divorce can vary depending on the state you live in and whether you have a prenuptial agreement. In some states, marital property is divided equally between spouses. In others, it may be divided based on factors such as each spouse's income and contributions to the marriage.
How does the state you live in impact who gets the house?
The state you live in can have a significant impact on your property division, including your marital home. In the United States, there are two primary types of property distribution laws that states follow: equitable distribution and community property.
Equitable distribution
In states that follow the principle of equitable distribution, marital property is divided fairly but not necessarily equally in divorce.
The court considers various factors when determining how to divide assets and debts fairly. For example, they look at each spouse's income and earning potential, the length of the marriage, and the contributions made by each spouse to the marriage.
This means that in an equitable distribution state, it's possible for one spouse to receive more than 50% of the marital home or other shared property.
Community property
In states that follow the principle of community property division, marital assets are generally divided equally between spouses. In these states, each spouse would typically receive 50% of the marital home or other shared property.
What happens to a mortgage in a divorce?
When a couple divorces, the fate of their mortgage hinges on a number of factors.
- If both spouses are listed on the mortgage, one spouse may choose to keep the house the house and take over the mortgage payments while the other spouse is removed from the loan.
- If neither spouse can afford to keep the house, or they simply don't want it, they may choose to sell it and split any profits (or losses) according to their divorce settlement agreement (after first paying off the mortgage).
- In some cases, one spouse may agree to let the other keep the house in exchange for other assets or compensation.
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What Should You Do With Your Marital Home in Divorce? Explore Your Options.
How do you update your house title after a divorce?
After a divorce, updating the house title is an important step toward making sure ownership of the property is properly transferred or updated.
Two primary options exist for updating a house title after a divorce: transferring the title to your former spouse or removing them from the title altogether.
Transferring a house title to your ex-spouse
Transferring the house title to your ex-spouse involves signing over ownership of the property to them. This can be done through a quitclaim deed, which is a legal document that transfers ownership of real estate between parties. The quitclaim deed should be filed with the county clerk's office where the property is located in order to update the official records.
If you have a mortgage, you'll want to make sure your name is removed from that. Otherwise, you could be liable for payments even if you're not living in the home.
Removing your ex-spouse from your house title
Removing your ex-spouse from the house title involves filing a new deed that removes their name from ownership of the property. This can be done through a warranty deed or a quitclaim deed, depending on whether there are any outstanding liens or other issues related to the property.
Once again, this new deed will need to be filed with the county clerk's office in order to update the official records.
Read: Property Rights in Divorce: Options for the Marital Home
FAQ about house titles and divorce
What is a quitclaim deed, and should I get one?
If you want to transfer property ownership from one person to another, a quitclaim deed may be the way to go. This legal document contains language specifying the transfer of ownership. Notably, if there are any liens or other issues with the property, they will not be resolved through a quitclaim deed.
Whether you should get a quitclaim deed depends on your situation. If you are transferring ownership of a property to someone you trust and there are no outstanding liens or other issues with the property, a quitclaim deed may be sufficient. For example, if you are transferring ownership to your spouse during a divorce settlement, and you both agree on the terms of the transfer, a quitclaim deed may be appropriate.
Can I sell my house during my divorce process?
In most cases, both spouses have an equal right to the marital property, including the family home, until a final divorce settlement is reached. This means that neither spouse can sell or transfer ownership of the property without the other's consent or a court order.
However, there are some situations where selling the house in the middle of a divorce case may be possible. For example, if one spouse has been awarded exclusive use and possession of the home as part of temporary orders during the divorce proceedings, they may be able to sell the house with court approval. Under no circumstances, however, should you try to sell your marital home during divorce proceedings until you've been given permission by a judge.
What if my spouse refuses to sign the house over to me?
If your spouse refuses to sign the house over to you during a divorce, there are several options available, depending on your circumstances.
Assuming the house is marital property and subject to division, one option may be to negotiate a settlement agreement that outlines how the property will be divided. This could involve agreeing on a buyout amount so one spouse takes full ownership of the home. Or, it could involve selling the home and dividing any proceeds according to the terms of the settlement agreement.
If negotiations fail and your spouse still refuses to sign over their ownership interest in the home, you may need to seek court intervention. This could involve filing a motion with the court asking for an order requiring your spouse to sign over their interest in the home or allowing for the sale of the property.
At Hello Divorce, we're committed to helping people before, during, and after their divorce process. We offer many resources, a la carte services, and online divorce plans. To learn more about what we offer, schedule a free 15-minute consultation.
