Who gets the house in a divorce with children?
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Will I keep the house in my divorce if I have the kids?
While the court prefer to keep children in the family home after a divorce, this isn’t always the case. There are lots of factors that influence this decision.
If you’re in the midst of a divorce, you’ve probably had to discuss splitting your shared assets. It’s here that most homeowners realise that their biggest asset is the family house. This can make it hard to decide what to do with it, especially when there are children involved. That’s why here at We Buy Any House, we decided to pull together some information to try and make things a little easier for you.
What are my legal rights?
Having joint ownership to your property means that you cannot be forced to leave by your ex-partner – unless there is a court order demanding that you do so. You have rights even if you’re not legally an owner on the paperwork of the house too, so if you’re worried that you’re going to be forced to leave, you don’t need to be. You’ve just as much a right to stay in the house as your ex. You both need to decide what to do with the house as civilly as you can.
We’re both on the mortgage, do I still have to pay?
Legally, you should still both be contributing to the mortgage. You can make an agreement between you, however, to change the percentages to reflect who is still in the house. For example, if you are still living in the property with your children, and your partner has moved out, they could request to pay a lesser percentage than you as they’re not currently residing in the property. This is for the two of you to decide what’s fair and what’s affordable, and try to come to an agreement that suits you both if you can.
What about the children?
In any divorce, the welfare of any children under the age of 18 is a priority. This usually means that, wherever possible, a judge will decree that they are to stay in the family house to reduce any disruption and hardship that they may face with their parents going through a divorce. This may differ if the house isn’t deemed a safe environment for them to live in, or if the parent that has sole custody cannot afford the house on their own.
What do the courts consider?
A judge will consider several different aspects when it comes to deciding what happens with the house, such as –
- The income, earning capacity, property and financial resources that each partner has and what they’re likely to have in the foreseeable future
- The financial needs, obligations and responsibilities that each partner has and is expected to have
- The standard of living before the breakdown of the marriage
- The age of each partner and the duration of the marriage
- Any physical or mental disability that either partner may have
- The contributions made to the welfare of the family- not just financial but the care of the family and raising of the children will also be considered
- The conduct of each partner through the divorce proceedings
- The value that each partner faces to lose in the divorce.
What could the court decide?
There are a few different outcomes that you could face, including –
- You are instructed to sell the property and split the proceeds
- One partner is to be transferred full, legal ownership of the property
- The sale of the house is postponed until a specific time, for example, the children turn 18 (a mecher order).
When there are children involved, the court will also consider child custody. The idea is that by keeping the children in the family household, it can minimise the disruption that children often suffer in a divorce. However, it’s essential to know that while it’s often the case that the primary caregiver is awarded the rights to the house, it isn’t always the case.
What about the mortgage payments?
The partner that’s leaving the property will tend to want to be taken off the mortgage documents, allowing themselves to buy another property elsewhere. If the partner that is staying in the house with the children can’t afford the mortgage payments on their own, a certain amount is usually added to the Spousal Maintenance Payments to ensure that the mortgage costs are covered.
What else gets considered?
Other things that will be taken into consideration are –
- The reasonable housing needs of the partners (including the children dependant on them)
- The income and the capital of each partner
- The affordability of each partner maintaining the house on their own.
It’s imperative to remember that every divorce is different, and the outcome is very rarely guaranteed. Make sure that you get sound legal advice so you know exactly what you should be trying to achieve and what’s realistic for your case.
Do I have to go through the courts?
You’re encouraged to find a solution yourselves rather than going through the court wherever possible, as court can be a long, costly and aggressive process. Finding a resolution through mediation can be much more relaxed and calmer for both parties, allowing more peace.
Will I lose everything if I’m not the primary caregiver?
If your ex-partner has custody of the children, you can still agree to sell the house and split the proceeds if neither of you can afford the house alone, or if the sale will allow you both to buy something elsewhere.
While dealing with a divorce can be some of the hardest times in your life, we try to do what we can to make it that bit easier for you. If you’re looking to sell your house after a divorce in a quick and easy sale, get in touch with us today and see what we can do. We give free quotes for any property and aim to find a time frame to suit you for your sale.
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