Am I eligible to keep my home in a divorce? 36 Answers as of August 01, 2011

Me and my husband are divorcing after 5 years of marriage. We have no kids together, I have a daughter and he has a son. I have full custody of my daughter, he doesnt have custody of his son, sees him on the weekends. We bought a house last year, I currently run a licensed day care out of our home. Will the factors of me having custody of my daughter and running a day care out of our home affect the chances of me getting the house in the divorce as long as I can afford it?

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Keri Burnstein, P.C.
Keri Burnstein, P.C. | Keri Burnstein
Those factors may help you to retain the house, especially if you can afford it. Does your husband want the house? Is there equity in the house? Many more questions need to be asked and answered to fully respond to your question. I recommend meeting with a family law attorney to discuss your situation in greater detail.
Answer Applies to: Michigan
Replied: 7/27/2011
Law Office of Robert L. Fiedler
Law Office of Robert L. Fiedler | Robert L Fiedler
Factors like yours are part of what would factor into a decision as to who should keep the house.
Answer Applies to: Connecticut
Replied: 7/26/2011
Neville J. Bedford Attorney at Law
Neville J. Bedford Attorney at Law | Neville J. Bedford
Yes. If you cannot come to an agreement to buy out your soon-to-be-former-spouse the court will hear the evidence and decide. If preparation, you should consult with bank and mortgage companies to see if you qualify to refinance in your name alone.
Answer Applies to: Rhode Island
Replied: 7/26/2011
Michael Edwards, Attorney at Law
Michael Edwards, Attorney at Law | Michael Edwards
There are too many factors that go into this sort of a decision, but I think that the factors you raised are at least persuasive arguments as to why you should be awarded the home. Good luck!
Answer Applies to: Utah
Replied: 7/26/2011
Fox Law Firm LLC
Fox Law Firm LLC | Tina Fox
This is a contributing factor as to why you are a good candidate to keep the home. There are other factors that have to be taken into consideration as well, however, including what your husband is willing to agree to. I encourage you to hire an attorney to protect your rights and fight for your desires
Answer Applies to: Illinois
Replied: 7/26/2011
    Law Office of Roianne H. Conner
    Law Office of Roianne H. Conner | Roianne Houlton Conner
    As long as you can afford to make the payments and request that you be allowed to keep the house the Court may grant this request.
    Answer Applies to: Alabama
    Replied: 7/25/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    With the facts you have presented, it is likely you will be awarded the home provided 1) you can afford it and 2) there are other assets/debts to balance the division of property so as to achieve a fair and equitable division.
    Answer Applies to: Washington
    Replied: 7/25/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    First, some background on property division in a divorce. If the two of you can agree on how to divide the property, then, the two of you can divide it just about any way you want. However, if the two of you are unable to agree, then, it will be up to the court to divide the property and debts. If the court is going to divide the property, it first has to classify it. All of the property is going to be classified as your separate property, her separate property, or community property. Which of these classifications a particular piece of property falls into will depend on how and when the property was obtained. In most cases, property obtained during the marriage will be community property. Once the property is classified, how it gets divided will depend on a number of factors. Some of the factors that the court may consider are: the duration of the marriage, the ages of the parties, the health of the parties, the educational background of the parties, the employment history of the parties, and each party's future prospects. The court then has to come up with what the court believes is a fair and equitable division of all of the property using these and other factors. Now, as to your specific case: The fact that you have a child living with you full time will certainly affect the court's thinking. The fact that you are running a business (daycare) out of the home will also affect it. Finally, you say that you bought the house last year. Therefore, it is probably community property. However, unless you put down a very large down payment, there is probably not a lot of equity in the house While there is no guarantee, it sound to me like you have a relatively good argument for the house being awarded to you.
    Answer Applies to: Washington
    Replied: 7/25/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    What you are asking for is called an "equitable remedy" or in non-legal parlance, you are asking the court to do what feels right. And in that context, the factors you set out all weigh in your favor. The question is whether or not the Court will go with an equity argument or simply split the baby as so to speak and order the house sold. Your biggest concern should be the financial equity in the house. Can you afford the house payment and buy your spouse out of his interest (if any equity exists) and keep in mind, he may have an equitable argument too - is the house financed on a VA loan and if so, it is his certificate or yours? Was there a down payment, if so, where did it come from?
    Answer Applies to: Texas
    Replied: 7/25/2011
    Horizons Law Group, LLC
    Horizons Law Group, LLC | Michelle B. Fitzgerald
    Those may be factors as well as other items in overall property division and if there were any equity in the home.
    Answer Applies to: Wisconsin
    Replied: 7/25/2011
    Owings Law Firm
    Owings Law Firm | Tammy B. Gattis
    Yes maybe. The court can award you the house if the judges feels it is equitable to do so.
    Answer Applies to: Arkansas
    Replied: 7/25/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    Possibly, but not necessarily. For you to receive the house in the divorce, you would have to pay your husband 1/2 of the equity in the house, or he would need to receive additional community assets to equalize that amount. If there aren't sufficient assets available to equalize the offset, you would need to borrow the monies to equalize that offset, and if you can't qualify for a loan, you likely wouldn't be able to afford to buy your husband out. If your husband doesn't agree to sell his 1/2 of the equity in the home to you, you may need to take that issue to trial, and the Court may or may not allow you to buy out your husband's interest in the house. The fact that you have custody of your daughter and run a day care business out of the house could assist you in getting an order in your favor, but you would still need to be able to afford to buy out your husband's interest in the house if you receive such an order.
    Answer Applies to: California
    Replied: 7/25/2011
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    If you cannot agree on the disposition of the house, the judge will either award it to you and require you to refinance to distribute his equity, award it to him and require him to refinance to distribute your equity, or order the house sold and the equity divided. The other children from other relationships really aren't part of the consideration. The business may be potentially. However, this one could really go either way. Therefore, my suggestion is to try to reach a settlement on the matter if at all possible. You should speak with an experienced family law attorney to discuss the potential issues, as well as your potential rights and options, before agreeing to or signing any documents.
    Answer Applies to: Florida
    Replied: 7/24/2011
    Correia-Champa & Mailhot
    Correia-Champa & Mailhot | Susan Correia Champa
    The facts as you have stated them will help you make a comprehensive argument in support of your keeping the home. Is your Husband on the mortgage and if he is, are you able to refinance in order to remove him from the mortgage?
    Answer Applies to: Massachusetts
    Replied: 7/24/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    The court will decide based upon many factors, some of which you have mentioned. If the court finds that your husband has funds to relocate, then there will have to be an evaluation of the net value of the home and you will have to figure out a way to pay him for his interest in the home. The fact you run your business out of that location is a strong point in your favor to have the court allow you to remain in the home. However, you should no nothing without meeting in person with an experienced family lawyer to go over this face to face.
    Answer Applies to: California
    Replied: 7/24/2011
    Meriwether & Tharp LLC
    Meriwether & Tharp LLC | Patrick Meriwether
    There is no straight forward answer to your question because the question is dependent on a multitude of factors. Anything accumulated during the course of the marriage is subject to equitable distribution. Your best bet is to try to work something out with your husband.
    Answer Applies to: Georgia
    Replied: 7/24/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    We recommend you retain a divorce attorney ASAP and discuss all the facts and justifications for your getting to keep the house, even if you must work out some arrangement for his to get his fair share of the equity. Of course, there are many other factors affecting equitable property division, so it is important you consult with your own divorce attorney! Good luck!
    Answer Applies to: Georgia
    Replied: 7/24/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    You should be able to keep the home so that you can continue your business. If there is any equity in the home, it will be divided equally most likely.
    Answer Applies to: Oregon
    Replied: 7/24/2011
    Apple Law Firm PLLC
    Apple Law Firm PLLC | David Goldman
    Yes these factors will be considered. You should discuss them and the other circumstances and financial conditions with your divorce lawyer to see what options you have and how to approach it correctly.
    Answer Applies to: Florida
    Replied: 7/24/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    The more salient factors that a court must consider would be whether there is any equity in the home and whether the person seeking to be awarded the residence is capable of refinancing the mortgage to remove the other party from that obligation.
    Answer Applies to: Minnesota
    Replied: 7/24/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Those are certainly amongst the many things a court looks at. There are other factors too. With a home business and a house and a child, it is absolutely necessary that you have an experienced lawyer to advocate your position. Without one, you are not likely to do as well.
    Answer Applies to: Georgia
    Replied: 7/23/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    Yes, those should both be factors that a judge would consider (not the only factors, but these are important facts).
    Answer Applies to: Georgia
    Replied: 7/23/2011
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    The real issue here is what equity exists in the home. If the house has no value or is "upside down" ( more is owing on the house than it's fair market value), then you may want to re-evaluate if you want to keep this residence. You could also bargain to keep the home if there is equity in the home and you can buy out your husband's share. You really need the advice of a skilled family law attorney to sort out the best solution for your situation.
    Answer Applies to: California
    Replied: 7/23/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    The question of who gets the house is usually determined by who can re-finance the house into their own name. Please see a local domestic relations attorney for more information.
    Answer Applies to: Ohio
    Replied: 7/23/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    Division of community property, other than any exclusive use orders while the divorce is pending, does not depend on the facts you stated in your question. It would be a good idea to hire a local family law lawyer to get a consult of how to your house, as well as address any of your other divorce issues.
    Answer Applies to: California
    Replied: 7/23/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    I would need to discuss this with you and get more information. Then I could give you some advice. I can help you with this. And I will tell you up front what it will cost to do this for you. Give me a call, make an appointment to come see me, and let's get moving on this for you. No charge for the telephone call and no charge for the first office visit.
    Answer Applies to: New Jersey
    Replied: 7/23/2011
    Osterman Law LLC
    Osterman Law LLC | Mark D. Osterman
    Yes, you may have an advantage. But be careful: You cannot count on the court making him help you with the house. GOOD LUCK
    Answer Applies to: Indiana
    Replied: 7/23/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    If you and your husband cannot agree on what should happen, a judge will have to decide what is fair after considering all the facts, particularly whether there is any equity value in the house, and what other marital property there is to be divided. Since you are probably both signed on the loan for the property, and the divorce court cannot change that, if you and your . husband cannot agree the judge will most likely order it sold. The fact you use the home for a business is relevant, but not determinitive
    Answer Applies to: Colorado
    Replied: 7/23/2011
    Arnold & Wadsworth
    Arnold & Wadsworth | Brian Arnold
    The day care will play a factor. You may have to refi it to give him half of any equity in the house.
    Answer Applies to: Utah
    Replied: 7/23/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    Yes. Those factors will help your chances ofgetting the house. Other factors are the other assets/debts that are involved and your financial futures.Can a fair and equitable division of your assets beachieved if you keep the house. See my website about how Washington courts divide property.
    Answer Applies to: Washington
    Replied: 7/23/2011
    Elmbrook Law Offices
    Elmbrook Law Offices | Gregory Straub
    The custody issues and running a business from your home have little to do with the question of maintaining your home. The two big questions are: What is the equity in the home and how will you split that equity, and do you qualify for a mortgage with your own income to support a new loan, which will allow your husband to be released from any liability associated with the current mortgage. Both of these items are negotiable through the marital settlement negotiations. If you are going to keep the home, your husband's counsel will force you to refinance the existing mortgage to remove his name from any future liability.
    Answer Applies to: Wisconsin
    Replied: 7/23/2011
    Petit & Dommershausen SC
    Petit & Dommershausen SC | Tajara Dommershausen
    Most of the time the parties agree on who keeps ot otherwise it is up to the court. It sounds ad if you have a better claim
    Answer Applies to: Wisconsin
    Replied: 7/23/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    Those factors, particularly the business run out of the home, may well increase the odds of the house being awarded to you. That would mean, however, that you would need to find a way to buy out whatever interest your husband has in the house, either by him taking other offsetting assets or you working out a payment plan over time.
    Answer Applies to: Washington
    Replied: 7/23/2011
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