Who Gets the House After Divorce?

August 11, 2012 (Press-News.org) In an "equitable distribution" state like Oregon, marital property is divided fairly between the parties to a divorce. The key word in property settlements is "fair." The law does not mandate that each spouse get an exactly equivalent share of the property dollar-for-dollar, only that any marital assets be split fairly between the parties.

The fairness of any given property settlement is a fact-specific determination that depends on the types of property in the marital estate, the length of the marriage, the preference for one or both parties to keep particular assets, the size of the estate, whether or not there are any children in the marriage, a spousal support (alimony) award to one party and other factors.

One of the most valuable assets traditionally sought in a divorce settlement was the marital home. Now, though, as more and more houses around the country have lost substantial equity and even gone "underwater" (where the mortgage on the property is more than the home is worth), it is harder to determine who will keep the home. What was once seen as a huge asset is now sometimes a liability. It is also harder for couples who decide that the home should be sold and the proceeds divided, since prices are down across the board and many jurisdictions are still dealing with a flood of short sales and foreclosures that "water down" the market for traditional home sales.

The marital home has most often gone to the party who is granted primary custody of the children. This is usually done as a way to ensure that the children's lives are impacted as little as possible following a divorce, the theory being that keeping them in familiar surroundings will give them a sense of belonging and certainty in a time of much change. That thinking has shifted in the past few years, though, because if a home is a source of debt instead of stability, particularly if the expenses associated with the home cause a party to incur additional debt (like a homeowner who is now working a lower-paying job who has to take cash advances from a high-interest credit card to cover monthly mortgage payments), it can actually make the children feel even more stressed and upset by the whole process.

The Family Court's Role

Obviously, Oregon's family laws prefer settlements that are amicable. When parties can work together and have a hand in their own property settlement -- especially if there are children involved -- both parties report a higher sense of satisfaction with the terms of the agreement. If the husband and wife cannot agree on issues like the division of assets, child custody, spousal support (alimony) and the divvying up of marital debts, though, a family court judge can step in to take over the decision-making process.

As mentioned previously, the role of a family court judge in a property settlement dispute is to make an equitable division of the couple's assets and liabilities. Again, though, this doesn't mean that each party will have an exact 50/50 split of the marital estate. It simply means that the law is designed with fairness in mind, so each party will get a fair share. What is considered equitable, however, can vary from case to case. Depending on the unique facts of a particular couple's history, it might turn out that the parties have very different amounts of property or monetary assets in the end, but they have still been given an equitable and fair percentage of the property.

The courts also ensure that marital debts are also divided equitably, including joint credit card bills, auto loans, the mortgage on the marital home, student loan payments and medical expenses incurred during the marriage. This can be a much more difficult undertaking when the family home is no longer seen as an asset, but instead as a liability, and a court could end up giving one party the marital home and the other party the rest of the marital debts. Again, this situation might be viewed as unfair, since one party only has the house payment to make and the other is paying several creditors each month, but the arrangement is actually an equitable way to divide the couple's liabilities if the value of the home and the combined value of the other marital debts is approximately the same.

Divorcing spouses and family courts alike have had to shift their thinking in recent years to ensure that consideration is given to the consequences associated with particular property settlement possibilities. Trying to make it through a divorce -- one of the most emotionally charged times in a person's life -- without making mistakes is nearly impossible for someone who isn't well-versed in the law. If you or a loved one is involved in an Oregon divorce, speak with an experienced family law attorney to learn more about the legal issues involved.

Article provided by The Law Office of Thomas M. Brasier
Visit us at www.brasierlaw.com