How Is It Decided Who Gets the Family Home in a Divorce?
Washington is a “community property” state, which means that assets and debt acquired during the marriage are, in general, divided equally upon divorce. But there is not always a 50/50 split, because the court looks at the spouses’ financial and familial situation as a whole in making the division. That can result in special treatment for certain assets like the family home, which in some cases will remain in one spouse’s ownership.
In some other community property states, separately owned assets — usually those acquired before marriage — are exempt from division. But in Washington, a court can take separate assets into consideration in deciding financial issues during a divorce. A large separately owned asset, like a home, can lead a court to reduce the owner’s share of community assets.
Other factors weighed are the length of the marriage and what each spouse contributed to it, including one spouse having given up career opportunities. And although Washington is a “no fault” divorce state, the court will consider the extent to which a spouse’s bad behavior, such as infidelity or drug abuse, caused a wasting of marital assets.
Here are some key questions a court may ask when deciding who gets the family home:
- Is the house community or separate property? Title to the home is not the only indication of the property’s status. For example, one spouse may have made the down payment on the house out of separate funds but both spouses may be paying the mortgage. The home will then likely be subject to property division based on each spouse’s contribution.
- Would a forced sale of the home cause financial loss? If the property is heavily mortgaged or would fetch too low on price on the open market, the court may decide to vest ownership in one spouse with the other getting due compensation.
- Are there children of the marriage? The spouse with primary physical custody may have better claim to stay in the family home at least while the children are minors. This can be done by keeping the home in joint ownership and allotting expenses appropriately during that time.
- What are the spouses’ relative economic circumstances? If one spouse earns enough to cover the mortgage, taxes and other home expenses and the other does not, that may weigh in favor of that spouse being allotted the property.
Spouses can avoid a court-ordered disposition of the family home by entering a separation agreement with the aid of a skilled divorce lawyer. If you’re going through a divorce and need guidance on asserting your rights with respect to division of property, Leslie R. Bottimore of Bottimore & Associates, P.L.L.C. in Tacoma can help. Call 253-272-5653 or contact us online to schedule a consultation.