A lot of times the question comes up of “who gets the house”.
Because the home is often the largest single asset in a divorce, it is
important to know what courts consider in making this decision. First,
courts consider the ability of the parties to continue making the mortgage
payments, taxes, insurance, and other upkeep expenses. Although debt is
a consideration in making the just and right division, courts do not want
to impose any liabilities on a party that in all likelihood cannot be
met. If the spouse lacks income to pay for the home, then that spouse
will not likely be awarded the home. If a spouse is going to have to move,
I always recommend that it happen sooner than later so the spouse and
children, if any, get settled in to the new situation. Another factor
involves whether or not there are children involved. If there are children
involved, courts try hard to keep their environment as stable as possible.
In that regard, courts consider which of the parties has primary possession
of the children and frequently award the house to that spouse.
A lot of people are under the misconception that just because the house
is awarded to one spouse the other is no longer liable for the mortgage.
Unfortunately, the courts are powerless to change liability on a debt.
If spouses have joint debt, such as on a house, the divorce court cannot
do anything about that. Sometimes a spouse will agree to try to refinance
a joint liability, but there’s little a court can do to force that