Your Home in Divorce
Your home and any other investments and savings.
For many families their home is their most valuable asset, and also their biggest worry if they separate. In all but a short marriage the court is likely to start from the assumption that in the value of the equity should be shared, but not necessarily 50/50.
The basic task is to ensure that both parties and the children have a home. It is sometimes difficult to see how to do that, from the available resources.
The first question is whether the house should be sold straight away. If the house is particularly grand or valuable, a judge will normally say that it should be sold, and that the parties must each rehouse themselves more modestly. But if it is a more modest property, and there are children, the judge will wish to see it kept until the children are grown up. So the issues become when should it be sold, and how should the proceeds then be divided – should it be 50/50 or something else. It is unusual for a judge to direct that one person should keep the house indefinitely, unless there are enough other savings to compensate the other person fairly.
If the house is to be kept whilst the children are growing up the person living there will be expected to pay the mortgage, bills and upkeep so s/he will need to demonstrate that it is affordable. Maintenance is a possibility but s/he may need to look for a job or increase her hours. S/he will also be expected to try to remortgage into his/her sole name. If s/he can’t do that, the other party will quite likely be unable to buy a new home for the foreseeable future so s/he will have to rent. That is not a happy position to be in, but the judge is likely to say that it is a regrettable consequence of giving priority to the needs of the children as they grow up.
Many families find that all their money is needed just to rehouse after separating, and of course to pay legal fees. But the judge will look at any remaining savings and investments and decide how those should be divided fairly.
The starting point will often be 50/50, but some assets might be treated differently, for example if one party inherited them late in the marriage, and business assets need special consideration. The judge has power to order assets to be sold or to transfer assets and savings from one party to the other, or to order one to pay the other a lump sum, to achieve a fair division.
You need to take individual advice about your own situation.