Many clients in divorce cases want to know “who gets the house”. The home is often the largest single asset in a divorce, so it is important to know what factors are important in making this decision. Judges distinguish between who gets the house on a temporary basis, while the divorce is pending, versus who will get the house and liability for it in the long run after the divorce is finished.
When children are involved, judges will want to keep the children’s lives as stable as possible and not move them around too much. If it makes sense, the judge will try to keep the children in the house at least on a temporary basis while the rest of the divorce is being worked out. If the children have to be moved, the judge will want the parents to plan the best time to make a move.
The ability of either spouse to continue making the mortgage payments is of obvious importance. Judges do not want to impose any liabilities on a spouse that in all likelihood cannot be met. During the temporary phase, a judge may require the primary parent and children to live in the house while the other parent makes the payment. Or, the judge may require payments to be made out of existing assets. However, in considering the long-term award of the house and liability, the ability of the primary parent to make the mortgage payment and otherwise afford the house is of utmost importance.
Regardless of which spouse gets the house and is ordered to make the house payment, if the mortgage is in both spouses’ names, both spouses will continue to be ultimately liable. In other words, if the spouse who is ordered to make the payments fails to do so, the mortgage company could still look to the other spouse for payment. The divorce judge has no authority to relieve either spouse from liability on a jointly held debt. Likewise, although the judge may require the spouse taking the house to attempt to refinance the debt into his or her sole name, if the spouse cannot get new financing, the divorce judge has very little enforcement remedy as to the refinancing.
When one spouse takes the house and debt, he or she will be required to sign a deed of trust document that gives some protection to the other spouse if the payments are not made. So, if the spouse that took the house gets three months behind in payments, the other spouse would have the authority under the deed of trust to catch up the payments and take over the house altogether.
If neither spouse can afford to keep the house, then the judge can order it sold. If one spouse has a legitimate concern that neither spouse will be able to pay for the house in the long run, that spouse can make a request to the judge to order the house sold so both spouses are relieved from the liability.