I must admit I have very little knowledge about divorces, and it’s not something I’m really keen on researching. But I do have a general question I’m curious about…
Sometimes you hear something along the lines of “the wife got the house in the divorce”. Since it seems like the single largest asset of the couple, and would usually be owned jointly, how could it be allocated to one party in the divorce settlement? For instance, if the wife got it, wouldn’t the husband get pretty much all the rest of the assets (and it still might not be even)?
This is one of those times to remember that life really isn’t fair. The only rule is that these things are negotiated on a case by case basis and there are reasons that one person might went to just walk away from some monetary assets, including a house, rather than fight and have things come out more in their favor.
My parents had a very messy divorce and my mother just basically told my father one day to just walk away and take everything but the kids and our personal possessions and be done with it. This was just to end the lawyer fees, days in court, and allow us to move on while having him out of our lives.
IAAL, but I’m not a family law practitioner and have almost zero knowledge in this area. This is pretty much the sum total I know on the subject:
Family law probably varies more than any other topic from jurisdiction to jurisdiction, so any generalizations are very dangerous, particularly between community property states and non-community property states.
Bearing in mind #1, many states give divorce courts a lot of discretion in how to partition assets in whatever fashion they deem equitable, which in the view of the judge may not necessarily be precisely 50-50.
And of course if the parties settle out of court, it can be divided however they agree.
Hopefully somone with better knowledge will be along shortly.
Unless things get really complicated financially, you just consider the house as an asset like any other. The value is determined in the usual way: market value minus mortgage equals equity. So you and your spouse have to split the equity the same as you split everything else.
One way is to sell the house and split the proceeds. Or if one wants to keep the house, he or she can “buy” the other person’s share in it. For example, if you have $50,000 equity in the house and want to keep it, you can pay your spouse $25,000. (I.e., she’d get $25,000 more of the other proceeds than she normally would have.) Your wife signs a “quit claim” paper saying she gives up all rights to the house, and it’s yours. The other spouse has to cooperate in this arrangement; I think they can usually force you to sell the house outright if they’d rather go that route.
That’s the pretty simple way. If you get nasty lawyers involved and there’s a lot of negotiation, the house just becomes one more thing to fight about and one spouse may just let the other keep the house in return for getting the Ferrari, or whatever.
The wife very often “gets” the kids so she gets to keep the house too.
Also, consider that they probably don’t own the house. She gets the house but also the loan that goes with it. So, equity wise it may not be as much money as it seems. And, perhaps there was another large asset like the retirement plan which the husband kept.
Those are just the two I thought of off the top of my head. I am sure each situation is different.
IANAL, but in California (community property) the court tries (ha) to take all parties into consideration, so it is likely that the kids get to stay in the house, the mother has custody of the kids so she does too, and the payments may be assigned to the father if he has the biggest income, as part or all of the child support.
Bicker enough and they may end up selling the house since money is so much easier to divide.
Divorces where there are no kids are far simpler. If you’re going to get divorced, ideally you want no kids, no debts, and no assets, and both parties are capable of supporting themselves.
Oh yes, community property means that all money earned during the marriage belongs to both regardless of who earned it (gifts and inheritance are sole-and-separate property of the person who got them).
A friend of my wife’s was paying rent to her ex to cover his equity while she lived there. Eventually, she tired of this arrangement or there was enough equity for her to get a mortgage covering his half or she was able to borrow it elsewhere, but anyway, she bought him out. There was no court fight when they separated but their lawyers negogiated whatever their agreement was. More or less amicably.
IANALE. The rules on gifts and inheritance also vary by jurisdiction. For example, in Wisconsin (marital property state, the only one in fact), inheritances and gifts are individual property as long as the property owner follows the rules (basically, any intermingling of individual and marital property converts the asset to marital). It’s really hard to keep individual property individual and courts tend to assume that the asset is marital unless the owner has meticulous and detailed records as to why it isn’t. Long story short, draft it in a marital property agreement (a.k.a. “pre-nuptual agreement”) before the wedding.