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Who should get the house in a divorce?

When working through a divorce settlement, there are several common points of major contention that can keep two divorcing spouses from reaching a fair resolution in a reasonable amount of time. One of the biggest is the matter of who gets to keep the house. Legally speaking, several factors go into determining which spouse should or can keep a house that the couple purchased.

One of the easiest metrics to use when determining who keeps the house involves your children, if you have any. If one spouse or the other will maintain primary custody of the children, then that person usually keeps the house as well. Judges tend to prefer this arrangement because it keeps the children's best interests at the heart of the settlement.

However, not all couples who divorce with a house in the mix also have children. The law does not give one spouse the right to force the other to leave the house, although it is a common request. One notable exception to this is when one spouse is abusive, but this also entails additional protection orders. Should one spouse lock the other out of the home without first legally acquiring the home or a protection order, the locked-out party should call the police, because this is illegal.

Ultimately, the matter often may come down to an asset-by-asset negotiation where one party gives the other several other assets in order to keep the house fairly. One party may also not be able to afford to keep the home and maintain the mortgage. There are many factors to consider, so it is always wise to enlist the guidance of an experienced attorney to help you consider all the factors in your situation and determine what is truly fair while keeping your rights protected.

Source: Findlaw, "Divorce Property Division FAQ," accessed May 03, 2017

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