ABA Family Legal Guide

Home Ownership

Property Rights and Restrictions

Ownership Options

How does the form of ownership affect the property settlement in a divorce?

In about 90 percent of all divorces, the parties divide the property up themselves in out-of-court settlements, often with the help of lawyers and mediators. The husband and wife decide what is fair and reasonable in a process of give and take. In contested divorces, it's up to the judge to decide who gets what.

Years ago, courts in most states had no authority to redistribute property in a divorce, so their job was to sort out the legal titles. Only jointly held property was subject to judicial division. But today courts are more concerned with what's fair than with whose name is on a deed. They consider a wide range of factors, from the length of the marriage to the needs of each party.

So who gets the house? If there are minor children, usually the home goes to the custodial parent. If there are other assets to divide, the noncustodial parent may get a bigger share of them to balance out loss of the home. If not, courts typically award possession of the house to the custodial parent until the children grow up. Then the house is to be sold and the proceeds divided between the parties. If neither party can afford to maintain the home, the court may order it sold promptly and the equity split. Chapter 3, "Family Law," contains more information on the division of property in a divorce.