The following scenario plays out quite often as a couple is divorcing:
Wife has primary custody of the children and she wants to remain in the house after the divorce so that the children can maintain some stability, finish high school and graduate with their friends. Husband wants to sell the house and either receive his share of the equity and/or release himself from the burden of the mortgage. Who prevails when the couple has these competing interests?
Generally speaking if the children are within a few years of graduating from high school the parent who has primary custody of the children will be able to remain in the house until such time as the children graduate and go off to college. The thought is that in balancing the husband and wife’s competing interests the children’s best interests trump the husband’s desire to immediately get his money and get his name off the mortgage.
Of course, the parties can agree on any arrangement that they want. However, if the parties cannot agree there is a recognized preference to let the high school age children finish off their careers in their house.
If there are no children, custody is not an issue, and therefore both parties will have an equal right to remain in the house after the divorce. In this situation if the parties cannot agree on who will remain the house will be listed and sold, and the parties will split the proceeds, or alternatively, one spouse will buyout the other spouse’s interest in the property, usually through a refinance. Continue reading →