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Divorcing With Children: Who Gets the House?

who gets the house in a divorce with children

Going through a divorce is difficult under any circumstances, but when children are involved, the stakes become even higher.

Deciding who gets to keep the family home is often one of the most challenging and emotional parts of the process.

Your home likely represents security and stability during an already tumultuous time.

While it may just be a structure made of walls and a roof, it also represents the memories made inside over the years your family shared together. This can make rational decision-making difficult.

As their parent, you want to make the choice that will be least disruptive to their lives. However, you also need to protect your own interests. There are no perfect solutions, but with some compromise and understanding on both sides, you can arrive at an outcome that allows you and your children to move forward in a healthy way.

To help you take those next steps, we’ll examine some key factors to consider when determining who should get the house after a divorce involving children.

How Marital Property is Divided in Georgia

When a marriage ends, all marital property accumulated during the union must be divided equitably between the spouses. This includes the family home in many cases.

Georgia utilizes the “equitable distribution” approach when handling property division in divorce.

This means the court aims to split assets and debts fairly, taking into account the specific circumstances of the marriage. The distribution does not need to be 50/50.

The Marital Home Is Often the Biggest Asset

For most couples, the equity they’ve built up in their home is their single largest marital asset. Even if the overall property division ends up being relatively equal, how the marital home equity gets allocated can make a huge difference in each spouse’s financial future post-divorce.

Issues of who will remain in the home long-term and how to fairly split its value must be high priorities in negotiating a divorce settlement. When an agreement can’t be reached, the court steps in to make determinations on the house based on fact and law.

In Some Cases, the Spouse with Physical Custody Retains the Family Home

When determining who gets the house in a divorce with children, often the spouse who will have primary physical custody of the children will be allowed to remain in the family home as long as the home can be paid for with marital assets, support, or the custodial parent’s income.

There are several reasons courts tend to favor this outcome:

  • Providing consistency for the children by allowing them to stay in the same home minimizes disruption and maintains stability. Remaining in the same neighborhood also often allows them to stay at the same school.
  • The custodial parent frequently has a greater need for the home, especially if they will be the one caring for the children the majority of the time.
  • Selling the home creates may create an emotional and financial burden on the custodial parent.
  • The children likely have emotional ties to the home where they have spent a significant amount of time. Preserving this connection is often viewed as in their best interest.

However, this is not a hard and fast rule. The court will look at the total equity in the home, contributions by each spouse, and overall division of assets. But in many cases, the spouse who will have primary physical custody of the minor children is permitted to remain in the family home after divorce.

Weighing the Pros and Cons of Keeping the Family Home

While allowing the custodial parent to remain in the family home often provides stability for the children, it’s not always the best option financially.

There are a few factors to consider:

  • Can the custodial parent afford to maintain the mortgage, taxes, and upkeep alone? Selling and downsizing might allow them to pocket equity and afford a more manageable monthly housing payment.
  • Is the house more space than they need? Kids eventually grow up and move out. Remaining could mean wasted space and expenses.
  • Does the noncustodial parent want to buy out the other spouse’s share of equity? This would allow the custodial parent to cash out their portion.
  • How do the children feel about moving? Older kids who are deeply tied to the neighborhood or school may prefer staying if possible.

There are pros and cons to keeping the family home that the custodial spouse should weigh. An appraisal of the home’s value, costs of ownership, and a budget review will help determine if staying put or selling is the better financial decision. The children’s needs should factor in as well.

Alternative Solutions for Dividing the Family Home

Beyond simply awarding the house fully to one spouse, Georgia courts may also utilize alternative solutions:

Selling and Splitting Equity

If both parties feel strongly tied to the home for emotional reasons, selling the property and dividing net proceeds may be the fairest resolution. This severs the connection to the physical dwelling while allowing each spouse to benefit from their share of the equity.

One Buying Out the Other’s Interest

To enable one spouse to remain in the home, the court may order them to buy out the equity interest of the other spouse by paying an agreed-upon dollar amount for their share. This compensates the spouse who moves out while allowing the other to stay.

Continue to Co-Own

Sometimes, the court will allow the ex-spouses to continue owning the home together, even if only one lives there. This enables both to maintain their investment and interest in the property, while the spouse with custody can remain in the home with the children. Clear agreements on expenses, repairs, and selling timeline need to be spelled out.

How a Family Law Attorney Can Help

A skilled divorce lawyer can be invaluable in negotiating the division of the marital home and advocating your position if the decision goes before a judge. They will look at your entire situation – custody arrangements, financial standing, emotional priorities for you and the children – to build the strongest argument for you retaining or being compensated for your share of the house.

A family law attorney knows how to gather documentation and evidence to support your case under Georgia law. They can also bring an unbiased perspective if emotions are running high over the property. Most importantly, a lawyer ensures your rights are protected while guiding you to reasonable compromises in the best interests of all involved. Having experienced legal counsel increases the likelihood of a fair, balanced outcome regarding the home.

Next Steps in Your Georgia Divorce Case

At Edwards Family Law, our divorce attorneys have in-depth knowledge of Georgia statutes and case law governing property division. We use our experience to protect your rights and advocate for an outcome that provides appropriately for you and your children.

Whether negotiating an out-of-court settlement or litigating through trial, our team can apply the proper legal strategies regarding the marital home that match your priorities. We will tenaciously represent your position while also helping you take a balanced view toward compromise if appropriate.

Our goal is to position you to move forward on solid financial and emotional ground.

To discuss your options on the marital home and creating an overall equitable divorce settlement, contact Edwards Family Law today to schedule a consultation. Our team is standing by to provide caring, honest guidance each step of the way.

Author Bio

Regina Edwards is the Owner and Managing Attorney of Edwards Family Law, an Atlanta family law and estate planning law firm she founded in 2005. With more than 21 years of experience practicing law, she is dedicated to representing clients in a wide range of legal matters, including divorce, child custody, child support, legitimation, wills, trusts, probate, and Medicaid planning.

Regina received her Juris Doctor from the Tulane School of Law and is a member of the State Bar of Georgia and the Atlanta Bar Association. She has received numerous accolades for her work, including being named a Rising Star by Super Lawyers for six years, as well as being named among the Pro Bono All Stars by the Georgia Bar Journal in 2019.

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