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Can I Stay in My House after My Divorce?

The Answer Is “Maybe.”

Many of the questions divorce lawyers hear from their clients have to do with where they will live during or after their divorce. This is not surprising because the marital home is often among a couple’s most valuable assets.

When the couple agrees on how the house should be handled, then the solution is easier. Often, however, the interests of the husband and wife differ.

Suppose the wife has primary physical custody of their children and she wants to stay in the house. To support her desire to remain, she notes that it would help preserve a sense of stability for the children. They could stay in the same school and would be able to maintain their friendships.

Now suppose that the non-custodial parent wants to sell the house and divide the equity. He does not want to be responsible for the mortgage payments.

If the two can reach an amicable agreement, then the court will not intervene. However, that is not always the case.

Frequently Asked Questions

The following are some of the questions New Jersey couples about to deal with the divorce process frequently ask regarding their family home:

  1. Is our home considered marital property?

New Jersey is an equitable-distribution state. That means that the court divides marital property equitably, or fairly, but not necessarily equally.

Any property—including the family home—that is purchased after the marriage took place is marital property even if it is in the name of only one of the spouses.

If one spouse owned the home before the marriage, then it is considered the separate property of that spouse.

The family home is also exempt from being considered marital property if it was given to one spouse as a gift or inheritance; that is true even if this was done after the marriage took place. However, if the spouse who owns the property added the other’s name to the deed, then the house is marital property.

  1. My money (and only my money) was used to make the large down payment on our home. That deposit was made before we were actually married. Will that amount of money be considered my separate asset?

Unless you have a premarital agreement (prenup) stating otherwise, the down payment will be considered a gift to your spouse and, therefore, marital property.

Of course, the court does not have to divide assets equally when deciding on what is equitable distribution. One factor the court will consider is the length of your marriage. If you were married only a short time, the court might take your large down payment into consideration.

  1. What are some of our options regarding how the house is handled in our divorce?

There are three basic ways a divorcing couple can deal with their home if it is marital property:

Option #1: One Spouse Buys Out the Other

One spouse can buy the other’s share of the equity either with assets owned separately or by trading the house for another valuable asset that is part of the marital property.

You should be aware that if your spouse gets the house and if there is a mortgage on the house, your name will not automatically be removed from the mortgage agreement.

To remove your name from the mortgage, your spouse will have to refinance the house and have your name taken off the loan. This issue as well as which spouse will cover the costs involved in the refinancing and sale should be addressed by your NJ divorce lawyer in your property settlement.

Option #2: Sell the House

Suppose neither spouse can afford to buy the other’s share and make the necessary payments. Also suppose that the assets cannot be divided equitably if one spouse is given the home. If these two factors are true, then the only option may be to sell the house.

Option #3: Remain Co-Owners

With this option, the house is neither sold nor refinanced until a later date—perhaps after the children graduate from high school. The parent with physical custody will live in the house with the children and the other spouse will move out.

This option requires a lot of cooperation between the ex-spouses and is very challenging to maintain. An experienced NJ family law attorney should be consulted to discuss the possible pitfalls related to this option.

  1. Can I force my spouse to move out of the house while we are still in the process of getting divorced?

The answer is “probably not.” Exceptions to this include an agreement between the parties, present or expected foreclosure and the inability to make the mortgage payments.

  1. I have filed for divorce. Can I move out of the house? Will it be considered desertion?

New Jersey is a no-fault state, so desertion is not an issue as far as getting your divorce or the division of your property. However, it might affect child-custody issues. This is a matter you should discuss with your divorce attorney before making any decisions.

  1. Can I sell the house before the divorce is final?

The answer is “probably not.” Exceptions to this include present or expected foreclosure or the inability to make the mortgage payments.

  1. My spouse wants to buy my interest in the house. Will there be tax consequences for either of us?

No, there are no capital gains or federal taxes imposed if one spouse transfers property to a former spouse in a divorce.

Seek the Advice of a Qualified NJ Divorce Attorney

These are complicated issues. It is advisable to consult with a knowledgeable divorce and family law attorney who understands New Jersey divorce laws. That attorney will be able to analyze your particular situation and provide guidance as to the best way to proceed.



Have you or your spouse filed for divorce? The trusted divorce and family law attorneys at Aretsky Law Group, P.C., can answer your questions about property distribution and the other issues you are about to face. For an initial consultation, call us 24/7 at 800-537-4154.

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