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What Happens to the House in Divorce?

Posted By Cairns Law Offices || 27-Jul-2015

If you are getting a divorce and you and your spouse own a home, one of your biggest concerns will be what's going to happen to the house. This is only natural considering the fact that your home is likely the largest investment of the marriage.

Married couples in Pennsylvania usually own their real estate as "tenants by the entireties." This is a form of joint ownership where neither spouse can sell the home during the marriage without their spouse's consent.

If the parties are getting a divorce, unless the couple has a written agreement providing for the division of the property, the court has the authority to divide the property based on Pennsylvania's principles of "equitable distribution."

Ideally, it is best for the spouses to decide how to divide the property amongst themselves and with the assistance of their respective attorneys. However, if the couple cannot reach a property settlement agreement on their own, then the court shall step in and decide for them.

When dividing marital property, the court considers a variety of factors, including:

  • The age and health of both spouses,
  • The duration of the marriage,
  • The income and assets of each spouse, and
  • Each spouse's economic and non-economic contributions to the couple's property during the marriage.

If neither the couple, nor the court decides to divide the marital residence, then the nature of the spouse's ownership automatically changes once the divorce is final and the ex-spouses become "tenants in common."

What counts as marital property?

Under Pennsylvania's Divorce Code, all property acquired by the spouses during the marriage is "marital property," with the exceptions of inherited property and gifts, regardless of whose name is on the property.

Additionally, if premarital property, inherited property, or property received as a gift increases in value, it will be considered marital property, even if it is in just one spouse's name. If marital property is not divided by the couple in a separation agreement, it may be divided by the court in an "equitable fashion."

When considering whether to keep the house in the divorce, you must weigh a number of factors, such as whether you can refinance the loan in your name, if there is equity, if you should take another asset instead, and if you can afford the monthly mortgage payments, maintenance, and property taxes.

Sometimes it makes more sense to take another asset instead of the house or sell the property and divide the proceeds from the sale. In any case, you should weigh your options carefully with the help of an experienced divorce lawyer.

For more information about dividing marital property, contact a Pennsylvania no fault divorce attorney from Cairns Law Offices today!