Lawyer's secret:   There are many flexible options when it comes to deciding who gets the house.

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Many spouses are concerned about which of them would get the house.  Some fear that the Judge will order that the house be sold. Many of these concerns are driven by a parent's need to live somewhere and often the need to house children.

 

The good news is that Judges routinely leave this decision to the spouses, and often an agreement is reached.  Usually never will a Judge order a house for sale, unless both spouses tell the Judge that they do not want the house.  

 

More often than not, one spouse or the other wants to keep the house.  If one spouse is willing to keep the mortgage current, or refinancing the mortgage (if a refinance is available), then that spouse will usually be allowed to keep the house.  

Many times, spouses don't ask for the house because they feel that they either can't afford the home or they would not be able to refinance the house. Not asking for the house is usually the result of common misconceptions. 

 

Many spouses are able to afford the former family home, when taking support into account, and other sources of income. Many attorneys can accurately calculate support payments, and from knowing the numbers, a spouse is in the better position to decide whether or not they can afford the home.  Without knowing what support would look like, don't automatically draw conclusions about what you can or can't afford.  

 

Forcing a spouse to refinance the house was very routine prior to 2006.  However, that has all changed because many homes simply do not qualify.  Many homes have lost so much equity, that a bank will simply not refinance the underlying note. In these cases, Judges will usually not require a refinance because it's physically impossible. The spouse that keeps the house will only be required to keep the mortgage payments current so that it will not negatively impact the other's spouses credit score. 

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Some spouses decide a "wait-to-sell" option where they both contribute to the home with the agreement that they will sell at a later date and share in the market gains.  This would allow one spouse to stay in the home in an affordable manner.

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