Please note that these answers are not legal advice. If you’re in need of legal advice or a lawyer please visit our Expert Guide

Whether you have to sell the house during a divorce depends on multiple factors, including financial ability, legal agreements, and your state’s property laws. Here’s what you need to know:

Marital vs. Separate Property

If the house was purchased during the marriage, it’s typically considered marital property, even if only one name is on the title.
If you or your ex owned the house before the marriage, it may be considered separate property unless both names were added or mortgage payments were made using marital funds.

Options for the House During Divorce

You generally have three main options:

Option 1: Sell the House and Split the Proceeds

This is the most straightforward option.
The proceeds are typically divided based on state laws (50/50 in community property states or equitably in equitable distribution states).
Benefits: You both get a clean break and financial clarity.
Drawbacks: You may have to find a new place to live during a stressful time.

Option 2: One Spouse Keeps the House

One spouse can “buy out” the other’s share of the home’s equity.
This often involves:
- Refinancing the mortgage to remove the other spouse’s name.
- Paying the other spouse their portion of the equity.
Benefits: Stability for children and continuity in living arrangements.
Drawbacks: The spouse keeping the house must qualify for the mortgage independently.

Option 3: Deferred Sale (Nesting Arrangement)

Sometimes, divorcing parents agree to keep the house temporarily for the children’s stability.
The house is sold after a set period—often when the youngest child graduates from high school.
This is called a deferred sale order or nesting agreement.

How the Decision is Made

Mutual Agreement: If you and your ex can agree on what happens to the house, the court typically honors that.
Court Decision: If you can’t agree, the court will decide based on:
- Each spouse’s financial ability to maintain the house.
- The best interests of any children involved.
- Equity and contributions made during the marriage.

Financial Considerations

Before deciding to keep or sell the house, consider:

Mortgage Payments: Can you afford the payments on your own?
Property Taxes and Maintenance: Are you prepared for upkeep costs?
Equity vs. Debt: How much equity do you have, and is it worth keeping?
Refinancing Costs: You may need to refinance to remove your ex’s name.

Example Scenario:

If you and your ex bought the house together, and you want to stay there, you would need to refinance in your name alone and pay your ex their share of the equity. If you both agree to sell, the profits would be divided based on your agreement or state law.