Dealing with divorce is not as smooth as it seems. Aside from forcing yourself to handle the emotional aspect that your relationship with your spouse didn’t work, you have to deal with the legalities and discuss them with your divorce lawyer. One of the most important decisions you will make during a divorce is who will get the house.
There is no simple response since it depends much on the circumstances of the relationship and state legislation. Here are some things you can ponder before making this choice.
General Rule: The House Is a “Family Property”
British Columbia’s family law states that regardless of who is listed on the title or mortgage, you and your spouse own the home you share while you are married equally. This is known as “family property.”
This general rule applies no matter how you acquired the house—whether you bought it before or after you were married or whether only one of you contributed to the purchase price. In other words, the house is not automatically awarded to the spouse listed on the title or mortgage. The court will examine all the case circumstances to decide who should get the house.
Factors the Court Will Consider
The court will deal with several factors when determining who gets the house, including:
- Who has been the primary caregiver of the children
- Who has been the primary financial relief of the family
- Who has been the main homemaker
- Who has the most equity in the house
If the couple can’t agree on who should get the house, the court will decide for them.
Instances Where Equal Division Does Not Apply
Your divorce lawyer has probably told you that the court will generally order an equal division of marital assets and liabilities, but there are a few exceptions. The following are three instances where the court will not order an equal division:
- If one spouse has failed to disclose assets, the court might require them to surrender a portion of their interest in the marital estate.
- If they have committed marital misconduct (e.g., adultery, physical abuse, etc.), the court might punish them by having them forfeit some of their assets.
- If you or your spouse makes a significantly higher income or assets than the other, the court may instruct one of you to pay a larger share of the marital estate.
Who Gets to Live in the House during Post-separation?
While your divorce lawyer might handle all the issues surrounding your separation from your spouse, the post-separation story is entirely different. After all, there are instances where neither spouse moves out of the marital home.
This case is typically resolved through a process known as “equitable distribution.” Equitable distribution is when the court divides the marital estate fairly and equitably. This may include a variety of elements, including each spouse’s income, the marriage duration, and the contributions each spouse gives to the union.
In most cases, the spouse not living in the marital home will be awarded temporary possession. This usually lasts until the divorce is finalized.
Final Thoughts
There is no easy answer regarding who gets to keep the family home after a divorce. Many factors come into play, such as who owns the property, who pays the mortgage, and who is listed on the deed. In most cases, the most suitable option is to negotiate a settlement that works for both parties.
Pathfinder Law is a reliable law firm that can help you with your marital home needs. Our divorce lawyers in Abbotsford are well-versed and qualified in all areas of family law, including property division. Contact us today for a free consultation!
