After a divorce, former spouses can divide their property, including their home, as they please. This article discusses what factors a Family Law Court will consider if it is asked to award exclusive ownership to one spouse.
The matrimonial home is an item of property that is included in the pool of property to be divided upon divorce. Unless a financial agreement has been made to the contrary, the home is subject to division even if it is titled only in the name of one spouse, was purchased with funds earned by one spouse, or was brought into the marriage by one spouse.
The contribution of a home to the marriage, either by bringing it into the marriage or by providing funds to buy it, is taken into account when the court assesses the total contributions that each spouse made to the marriage. If that contribution is attributable to one spouse, the court might give that spouse a larger share of the property pool (perhaps including ownership of the house) unless the other spouse made offsetting contributions (including nonfinancial contributions).
In some cases -- for instance, if the court divides property equally after a lengthy marriage -- it may be necessary to sell the matrimonial home so that cash is available for distribution to both spouses. In some cases it might be possible for one spouse to obtain exclusive ownership of a home that would otherwise be sold by “buying out” the interest of the other spouse. That possibility, of course, depends on whether the spouse who wants exclusive ownership has sufficient funds or the ability to borrow those funds in order to pay the other spouse.
While the Family Law Act makes no express provision for an award of home ownership to a parent who will have primary custody of children, it does instruct judges to give “the widest possible protection and assistance to the family … particularly while it is responsible for the care and education of dependent children.” That instruction may encourage judges in appropriate cases to award ownership of a home to the parent who is responsible for providing the children with shelter.
What the court will do usually depends on the economic realities of the situation. For example, the court might provide that both parties will share ownership of the home while the children are still minors, but award exclusive use of the home to the parent with whom the children are living.
The court’s order could require the home to be sold, and proceeds divided, after the children reach adulthood. While children may have an impact on exclusive use and exclusive ownership of a home, the final analysis will still depend on how the court views the respective contributions of the parties to the property pool and whether it is economically realistic to award exclusive ownership or use to one spouse when dividing that pool.