What happens to your home when you go through a divorce?

But Where Will I Live?

For most people going through a divorce, is one of the most stressful time periods in that person’s life. It's a whirlwind of emotion, financial uncertainty, relationship anxiety, and for many, uncertainty about your living circumstances.

In Virginia, 66.7% of households own at least one residence.1 For most households, the marital home is the couple’s most valuable asset, both in financial terms and in terms of being essential to the owner's quality of life.2 For this reason, use of the marital home and eventual disposition of it are among the most contentious issues to resolve in a divorce.

So you’re separated, now what?

Oftentimes, and most traditionally, one person will move out of the home. He or she might rent an apartment, stay with family members, or in a second property. If a couple has minor children who still live with them, then the children will typically stay in the home with that spouse. The Virginia judicial system prioritizes the best interests of the children in a divorce above all else and in so doing, tries to be as least disruptive to their routine as possible. Since the children usually remain in the home, at least at the beginning, the spouse who retains use of the home will necessarily have more time with the children.

These days, especially in our northern Virginia Community where living space is highly expensive, more and more people are choosing to live separately under one roof. This is not an option at all for a spouse fleeing abuse, and not a good option for a couple in a contentious proceeding, but an increasing number of people prefer this option, as it also means equal time with the children, and avoiding a temporary custody battle.

On rare occasions, both partners will vacate the marital home, though usually, this is due to the lack of minor children and a mutual desire of the parties to liquidate the asset to finance a relocation.

Who gets what?

This depends largely on your desires and circumstances. If only one spouse wants to stay in the house then the easiest option is for that spouse to agree to buy the other spouse out either via refinance or by deducting the home value from that spouses’ share of the equity split in the divorce.

If neither spouse wants to (or can afford to) keep the house on their own, then the best option is to sell the property and split the proceeds.

If the parties cannot agree on the disposition of the house then a judge will decide what to do. This might include ordering that one spouse be granted exclusive ownership of the house, but in most cases, the judge will order the house sold and the proceeds split. If the parties cannot agree on the circumstances of the sale (appointing a realtor, setting a price, choosing when to list the property, making necessary improvements for marketability, etc) then the judge might appoint a receiver (an unbiased attorney with no other connection to the proceeding and experience in such matter) to sell the property. The receiver will usually be compensated from the assets of the marriage.

Selling the Property

In most cases, the property will wind up being sold, either because the parties agreed to a sale or because a judge ordered it. Though the parties can sell the home at any point and time, it is best to do so pursuant to the terms of a Property Settlement Agreement, or other document, that outlines the method of sale and describes how the proceeds will be split. Coming to an agreement on these details ahead of time will help avoid bickering over the terms of the sale and will make for a faster and more efficient transaction.

Key Takeaways

As with most negotiations, it is far less expensive, stressful, uncertain, and time-consuming to resolve the issues surrounding the divorce without court intervention. However you may feel about your spouse, what you deserve, and what you think the status quo is at court, you should do your best to remain objective about the situation and try to do what is best to move forward. If you have concerns about the direction things are going in your divorce you should consult a reputable attorney and realtor with experience in such matters as quickly as possible.

1 https://virginiarealtors.org/2022/06/24/2022-homeownership-trends-in-virginia/
2 https://www.pewresearch.org/social-trends/2011/07/26/chapter-3-net-worth-by-type-of-asset/