Who Gets The House In A Massachusetts Divorce?

September 28, 2022 O'Connor Family Law Divorce

Going through a divorce is a hard experience. There are many questions raised about how things will work, what assets each party will be rewarded, what debts they will be responsible for, and the like. One of the biggest questions that people ask is whether or not they’ll be able to keep the house they live in.

Answering that question is a little tricky. Divorce can play out in a number of ways. What happens to the family house can be very different depending on if it is determined by the divorcing couple themselves or left up to the courts, which is often the case because the divorcing couple cannot come to an agreement.

To find out more, we’re going to first look at why one of the best options for answering this question is to work with an experienced divorce attorney. From there, we’ll look at what factors the court considers to determine who should be awarded the house. Then, finally, we’ll also touch on what happens with temporary orders regarding who can stay in the house.

Why Is Settlement the Best Way to Determine Who Gets the House in a Massachusetts Divorce?

The best way to determine who gets the house in a Massachusetts divorce is for the couple getting the divorce to come to an agreement amongst themselves. If purchased during the marriage, the equity in the house is typically going to be divided in half. There may be different arguments to make if the home was purchased prior to the marriage or if significant funds were used by either party from funds that had been obtained prior to the marriage, which may cause the split to be a different percentage. Only if a piece of property was kept completely separate and not commingled with the marriage might it be left out of the division.

If a divorcing couple cannot come to terms on how to fairly divide the marital property, then it will be left up to the courts to decide. Ultimately, what this means is that the divorcing couple would no longer be able to exercise much control over the outcome. When the outcome is left up to the courts, it’s possible to end up with a solution that makes nobody happy.

So the best course of action is for the divorcing couple to come to an agreement. However, many divorcing couples have a hard time with this. Divorce often brings out the worst in people, and it raises emotions that often prevent any kind of cooperation.

Negotiations with an experienced divorce attorney can help to fix this issue. By involving an attorney who is skilled in helping settle cases, a divorcing couple often checks their emotions, and, even if begrudgingly, they work to come to an acceptable arrangement between them.

The three options typically available are (1) Spouse A “buys out” the interest of Spouse B and retains the house; (2) Spouse B “buys out” the interest of Spouse A and retains the house; or (3) the house is put on the market, and the equity remaining after all fees, expenses (and possibly other bills) are paid out of the sale proceeds is typically divided between the parties.

What Factors Contribute to the Court’s Decision on Who Gets the House in a Divorce?

It can be hard to answer the question of who will get the house in a Massachusetts divorce when it is left up to the courts. There is no guarantee that either party will be the one awarded the house. Instead, the best thing to do is to look at the factors that contribute to the court’s decision and use these to decide the likely outcome. Unfortunately, this approach still leaves a lot of room for argument.

Some of the factors that the courts use to determine who gets the house in a Massachusetts divorce include:

  • The length of the marriage
  • The time at which the house was bought, and whether that occurred before or during the marriage
  • The age of each party
  • The health of each party
  • What each party does for a living and how much income they have
  • The degree to which either party was involved in the purchasing, upkeep, and renovation of the house
  • Whether there are any children of the marriage and how losing or keeping the home would affect them

One of the most important factors is whether either of the parties is in the financial position to buy the other out of the equity in the home. If Spouse A wants to keep the house but would need to refinance to do so to remove Spouse B’s name from the mortgage, and, no matter how badly Spouse A wants to keep the home if Spouse A could not refinance the home within a reasonable period of time, it is unlikely that Spouse A would get to keep the home.

The above factors are considered at length to determine the best way to divide all of the marital property, including the house. Ultimately, however, it will be up to the courts to weigh each point and consider the broader picture to come to a decision if the parties cannot decide between themselves. But, again, leaving this choice in the hands of the court eliminates your ability to decide the outcome. Whenever possible, it is best to try to come to an agreement on your own rather than hand control over to the courts.

Not only is the issue of who gets to keep the home important, but equally (if not even more important) is the issue of what the fair market value of the marital home is and how the equity in the marital home based off of that valuation should be divided between the two parties. A thorough look at the totality of the parties’ financial situation should be conducted to see if there is value elsewhere that might allow for one party to retain the home (and all of the equity) while the other spouse receives a different account of value (let’s say a retirement account or pension) without having to split it.

There are many options when it comes to how the equity within a home should be divided, so having a divorce attorney who can be creative based on your specific desires and needs is incredibly important.

What Is a Temporary Order in Regard to the Family House During a Divorce?

There is such a thing as a temporary order which can, as the name suggests, temporarily award residency of the house to one party. Because these are temporary, it does not mean that the person who remains in the house during the divorce is the same one who will retain the house after the divorce is over; however, if the person in the house wants to retain the house, the Judge will typically favor having that person stay there if possible.

A temporary order can also lay out who has to pay the mortgage and expenses relating to the marital home as well. Although, typically, the person who remains in the home is usually liable to pay the expenses related to it, in many cases, because both parties retain an interest in the equity, a Judge may expect both parties to contribute to the mortgage or other related expenses. If you’re the person who is not staying in the marital home, this may seem very unfair if you also have to pay for your own housing costs on top of that.

In a case where the divorce stems from or includes domestic abuse, then a temporary order is highly likely, especially if a restraining order is put into place between the divorcing parties. A restraining order and/or temporary order would award occupancy of the house to one of the parties, hence making the other have to find their own housing. The goal here is to offer protection to the abused and any children of the marriage.

But a temporary order should not be seen as a win. It does not mean that the person temporarily awarded the house will be awarded it fully. It is simply a means for the legal system to help reduce conflict between the parties by laying out the rights and responsibilities of each party during the pendency of the divorce.

Unless there is a temporary order or a protective order, however, there is no rule during a divorce proceeding that says only one spouse should remain in the marital home. In fact, there are many cases where both parties continue to reside together in the marital home until the Separation Agreement is signed. Sometimes (in cases where the parties are extremely amicable), we have seen people continue to live together even after the divorce as supporting two individual households can be a significant expense.

Should I Work with an Attorney?

An attorney won’t necessarily be able to get you the house if it’s left up to the courts, but an experienced divorce attorney can help build arguments that support why you should be awarded the house. Though even more importantly, an experienced divorce attorney who is just as skilled in negotiation as in litigation can offer representation in a manner that gives you the best chance to keep the final decision in your own hands. Contact O’Connor Family Law in Westborough or Hanover today to learn more.