Who gets the house?

Lawyer's secret:  The spouse that wants the house, gets the house (provided that the spouse can pay for it).


Many spouses have asked this question, and their inquiry is more fear based than for any other reason.  The concern stems from the general misconception that Judges will order that a house be sold.  This misconception drives a spouse's fear, and the issue is further compounded when knowing the house value is far less than the mortgage balance; so, in that case, would you have to bring money to the closing table - which is not very realistic.  The sharp reality is that despite your spouse's proclamations that the Judge will have the house sold, this is not the case in today's world.


To be certain, when the market was better, having the house sold was the norm.  Generally, there was always a financial benefit by the sale.  There was equity to divide, maybe even plenty of money to pay-off credit card bills and other debts. Today, the landscape is very different.  Many houses have no equity or very little - not enough to satisfy marketing and closing costs.  Refinancing a home is also nearly impossible.  The remedies that the Court can force on spouses are sharply limited, and selling the house is not usually an option.


In today's market, there are four acceptable ways in addressing a house in divorce:  


Option No. 1.  You keep the house.  This would involve you staying in the house and your spouse would move out.  This is the preferable option, if you're looking to fight for custody. Keeping the home as the stable living place for you and the children looks good in a custody dispute.  You will likely not have to refinance the house (unless you're the rare case and you have equity in the home).  However, be mindful that if you want to stay in the house, you will have to agree to continue paying on the mortgage.  If you're anticipating support in the form of child support and alimony, you can use those funds to help you pay for the house.  


Option No. 2.  Your spouse keeps the house.  This would involve similar circumstances as above.  Your spouse would have to keep the mortgage current on the property as to not affect your credit score.  Generally, you don't want to agree to this upfront, if your spouse is going to fight for custody (as this factor is weighed heavily by the court).  If living in the house is not going to be good fit for you, let your spouse have it.  However, talk to an attorney before making this decision, if custody is at issue.


Option No. 3.  You and your spouse become investment partners.  Many spouses agree to hang on to the house, where one of the spouses will live in it while the other helps with the mortgage and taxes.  The benefit is realized down the road (3 years or longer) when the house is sold and the parties divide the equity at that time.  This option is preferable with parents of very young children, where the desired result is maximum stability for the children.  Sometimes support issues can be ironed out (more easily) in this type of scenario.  Because Judges typically don't do this as a result in a case, this option is only available when you and your spouse agree to it (meaning, the Judge will not force this result but will approve it, if there's an agreement between the parents).


Option No. 4.  You and your spouse do what's called a "strategic walk-away."  A strategic walk-away is when you both simply move out of the house and never look back.  All payments stop, and the bank will take over the house and will likely foreclose on the property.  Spouses use this option when the house wasn't very affordable to begin with, and the house has so much negative equity that it will never see positive numbers for many years.  This is a very popular option for spouses that are considering filing for bankruptcy protection. Any discussion involving a walk-away should be thoroughly discussed with an attorney.


Out of all the options above, you'll notice that the Judge forcing the sale is simply not realistic.  While Illinois law does allow for the sale, Judges seldom go in that direction because the market has simply made this option impossible to satisfy.  Judges can only enter orders (and enforce them) that are realistc and can be followed.  If a court order is entered that makes its enforcement impossible, the court order is considered invalid.  So, unless there is a lot of equity in the home, house sales are rare in today's market.  If you are in the position of having equity in your home, even then house sales are rare (unless you and your spouse agree to sell the house).  In that case, there are easy ways to keep you in the house (even though, you believe that you can't afford it).  Talking to a seasoned divorce lawyer will give you the details to accomplish your goals and objectives in the divorce process.


If you have any additional questions about this topic,
please call Paul D. Norini at (480) 527-9000
or email him at:   paul.nordini@divorceinfosite.com