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Getting a Divorce: Who Gets to Keep the House?
Part of the American Dream has always been the idea of home ownership. People want a place to call their own. As such, a home is probably the biggest single investment most couples will make in their lives.
So, when a couple decides to divorce, it should come as no surprise that the house is one of the biggest points of contention. What happens in New Jersey when a couple divorces and fights over the house? Here’s what you need to know.
NJ’s an ‘Equitable Distribution’ State – Meaning Fair, Not Equal
In New Jersey, the term you need to understand is “equitable distribution.” This means marital property and assets will be split between the couple fairly. This doesn’t mean that they have to be split equally.
The judge won’t divide up the total assets and split them right down the middle 50/50. Instead, the judge will determine what he or she feels is a fair split between the two parties — that will be the guideline used in the decision.
There Are 3 Ways to Equitably (Fairly) Distribute the Family Home in Divorce Cases
1. The first thing you can do is probably the easiest and most common option — selling the house. This way, neither spouse “gets” the house, or manages and maintains it after the divorce. In this situation, the house is sold to a third party, and the money from the sale is fairly distributed between the spouses by the court.
2. The second most common option is a buy-out. Since the couple lived together and made payments on the mortgage, the house built equity. Here, one couple member will buy out the other’s equity so they can take on the house themselves.
This means that the loan must be refinanced with the spouse who’s buying out the other being listed as the sole owner of the property. There can be extra costs associated with this, so it’s smart to talk to your financial advisor or a mortgage professional before going this route.
Refinancing the loan will include things such as attorney’s fees and closing costs, along with a home inspection for the loan. The couple will need to agree on who’s responsible for these costs or how they plan to split the costs before it can happen.
3. Probably the least common option is for the soon-to-be-ex spouses to co-own the house. This one is usually in cases where the couple has high school-age teenagers, and the couple feels it’s in their best interest to stay in the home so they can continue to go to their zoned high school until they graduate. After graduation, the couple will then sell the home or negotiate a buy-out. This option comes with several potential problems.
First, it can be difficult to cooperate with an ex-spouse on the management of a home after a divorce, especially if the divorce is contentious. Also, the spouse who moves out of the house will probably find it very difficult to get another home loan since they already officially have one home already. Many banks won’t provide a loan in this type of situation, depending on the person’s credit.
Is the Home Always Considered Marital Property?
In New Jersey, a house is considered to be marital property if it was bought during the marriage. This means that it’ll be distributed as part of the court’s divorce decree.
However, if one member of the couple owned the house prior to marriage, then it may not be considered marital property. If the one partner is the only person listed on the title as owner, then it’s considered their sole property and won’t be part of the divorce decree.
There’s one other issue, however, that may change this situation. Let’s say hypothetically the husband owned the house prior to marriage and the wife was never added to the deed. It can still be listed as marital property (and subject to distribution) if the wife can prove that she made significant contributions to the home.
Usually, this means a monetary contribution, such as if the wife paid for extensive renovations (or performed them herself). It can also include non-monetary contributions such as home maintenance and staying there to raise the children.
Factors a New Jersey Court Will Consider
There are several factors a New Jersey court will consider before making a final decision on the home (or any parts of the marital property). These include:
- The length of the marriage;
- The age and health of the two parties;
- How much income each spouse brought to the marriage;
- The couple’s standard of living while married;
- The economic circumstances (such as employment status) of each spouse as well as their earning potential moving forward;
- How much each person contributed (monetarily or otherwise) to the house;
- Other debts and financial obligations; and
- Child custody and the children’s needs.
How Do NJ Courts Determine Who’ll Be Awarded the House?
All these factors will be taken into account when determining what’s a fair distribution of the property and who should “get” the house. Most of these factors are issues that the average person may not be aware of or fully understand. That’s why it’s so important to protect yourself and your assets by hiring a skilled and knowledgeable divorce attorney who can help guide you through this and ensure you get the best possible decision.
Contact the Experienced Family Law Attorneys at Smedley Law Group in Marlton, NJ Today
If you’re thinking about filing for divorce, you’ll also most likely be dealing with another matter like child custody, child support, or equitable division of assets, so you’ll need to speak with a qualified attorney. The New Jersey family law attorneys at Smedley Law Group represent clients throughout the state, including West Deptford, Woodbury Heights, Runnemede, Cherry Hill, Williamstown, and Westville. We understand how challenging this time can be for you, which is why we will fight hard to protect your interests, and the interests of your loved ones, throughout the legal process. Call us at (856) 251-0800 or fill out our confidential contact form to schedule a consultation. We have an office conveniently located at 750 Cooper Street, Woodbury, NJ 08096.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.