People going through a divorce here in Georgia ask us this question frequently. The answer, as usual, is that it depends on the facts and circumstances of the case. As always, the parties can agree to do anything they want to do with the home, well, almost anything, burning it down and splitting the insurance money would be against law. Short of doing something illegal a husband and wife going through a divorce can generally agree to anything regarding the custody of their children and the division of their assets and debts. At that point a settlement agreement can be drafted and submitted to the court with the appropriate paperwork and the agreement will become a binding order of the court.
For discussions sake, let’s say the parties cannot agree and we are going to go to court and litigate the issue. As we have discussed on this blog before, the equity in the home, if there is any, will need to be divided between the parties. Another factor in this discussion is the mortgage, as we have also discussed on this site, if the mortgage debt is in both names the party keeping the house is going to be required to refinance the home so as to remove the other person’s name from the debt obligation. Given these realities, if the person asking the question has sufficient income to pay the mortgage and refinance the home, then they are very likely to be able to remain in the home. If the family has significant assets that can be used to pay the home off or down to the point that alimony and child support would be sufficient to allow the refinance then remaining in the home is again likely. The age of the children is also obviously going to be a factor, if it is only a year or two until the child graduates then it would be a lot more likely that the spouse receiving primary custody would be allowed to remain in the home until graduation. If however the children are young and the income of the parties cannot logically support the expense of the marital residence, then the court is likely to order that the home be sold sooner rather than later.