Divorce brings uncertainty for parents and children. Normally, at least one parent will be moving out of the marital house and/or it may be sold because without both parties’ incomes the mortgage may be unsustainable. That said, one of the most important factors in raising well-rounded children is having stability. Certainly, moving houses (and maybe schools or districts) seriously impacts stability. In this blog, we analyze the legal aspects of keeping the children in the family home at the time of divorce.
Obviously, if you are the parent seeking custody and you cannot afford the marital residence and the mortgage obligation to ask for the house in the divorce, you should carefully consult with your counsel. Fighting for the home may impair your long-term financial well-being. However, there are numerous legal tools, such as an unequal division of the marital estate1 in your favor or division of a retirement account by the immediate offset method that may give you the money you need to pay the mortgage and remain in the house with the children.
In addition, the Divorce Act2 requires the trial court in dividing the marital estate to specifically consider “the desirability of award the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of the children.”3 What this means is the court may award the marital residence to the parent getting custody and make special provisions for the removal of the other spouse from the mortgage. So for instance, if you would not qualify for refinancing at the time of divorce, the court may give you a year or more to refinance so you keep the children in the home, balancing the impact of the mortgage remaining on the other spouse’s credit.
Ultimately, another way to make the argument is that staying in the home is in the children’s best interests. Although child-related issues and property issues are treated separately, there is some cross-over. So, for instance, if you had a special needs child and the home had been adapted for his or her needs or the school had developed a comprehensive IEP to meet the child’s needs and this would be eliminated by moving out the marital residence, the children’s best interest may support your property argument for why you should be awarded the marital home.
In the final analysis, to maximize the chances you will prevail at trial, you should know why you should obtain custody in the children’s best interests and present this in the evidence. Then you must present evidence to the court of why it is necessary to remain in the marital home and how it may work financially. Just asking for this in court is often not enough. With counsel, you should carefully work up the evidence to make this case. So, yes, if you are the custodial parent and need to remain in the home, the Divorce Act and good lawyering will help you make your case.
This blog was written by attorneys at Dixon & Moseley, P.C. who handle domestic cases of all types through the state. The key trying to stay in the marital home is to select counsel to carefully develop the evidence noted in this blog related to your specific case. This blog is written for general educational purposes. It is not intended to provide legal advice or is it a solicitation for services. It is an advertisement.