Who Gets the House? Navigating the Marital Home in Divorce
One of the most contested issues in a divorce is what happens to the marital home. For many couples, their home is their largest asset and carries significant emotional and financial weight. In Oklahoma, the division of marital property, including the home, follows equitable distribution laws.
At Cannon & Associates we always want to make sure that you have all the resources you need to make informed decisions, whether you hire us to represent you or not. Below, we answer common questions about how the marital home is handled in an Oklahoma divorce. As always, feel free to reach out to our team for a FREE Case Strategy Session should you want to discuss your case personally. We know you have questions, let us answer them for you.
Q1: What happens to the marital home in an Oklahoma divorce?
In Oklahoma, the marital home, like other marital assets, is subject to equitable division. This doesn’t necessarily mean a 50/50 split, but rather a fair and just distribution based on various factors, including the length of the marriage, contributions of each spouse, and the needs of any children. The court can order the sale of the home and division of the proceeds, or one spouse may be awarded the home with an offsetting allocation of other assets or a buyout to the other spouse.
Q2: How is the value of the marital home determined in a divorce in Oklahoma?
The value is typically determined through a professional appraisal. Both parties can agree on an appraiser, or the court may appoint one. Factors considered include comparable sales in the area, the home’s condition, and any recent improvements. It is important to get a real estate professional appraisal, not just an online estimate.
Q3: Who gets to keep the marital home during the divorce process?
During the divorce proceedings, temporary orders may be issued to determine who resides in the home. This decision is often based on factors like child custody arrangements and financial needs. The final disposition of the home will be determined in the divorce decree.
Q4: What if one spouse wants to keep the marital home and the other wants to sell?
If the spouses cannot agree, the court will make the decision. The judge will consider various factors, including the ability of each spouse to maintain the home, the best interests of any children (if any) and the overall fairness of the division. If one spouse wishes to keep the home, they may need to buy out the other spouse’s interest.
Q5: What if both spouses want to keep the house?
If both spouses want the house, the court may decide based on financial stability, child custody considerations, and ability to buy out the other spouse’s interest. If an agreement cannot be reached, the court may order the home to be sold.
Q6: How does a buyout of the marital home work in Oklahoma?
A buyout involves one spouse paying the other for their share of the home’s equity. This is typically done through refinancing the mortgage or using other assets. The amount of the buyout is based on the appraised value of the home and the percentage of ownership each spouse has.
Q7: What if my spouse owned the house before the marriage?
If one spouse owned the home before marriage, it may be considered separate property. However, if marital funds were used to pay the mortgage, make improvements, or increase its value, the non-owner spouse may have a claim to a portion of the home’s equity.
Q8: What should I do if my spouse refuses to leave the house?
If one spouse refuses to leave, you may need to seek a court order to determine who can remain in the home during the divorce process.
Q9: Can we sell the house before the divorce is finalized?
Yes, spouses can agree to sell the house before the divorce is finalized. If they disagree, the court may order the sale and oversee how the proceeds are divided.
Q10: What happens to the mortgage on the marital home during a divorce?
The divorce decree will address the mortgage responsibility. If one spouse is awarded the home, they will typically need to refinance the mortgage in their name alone. If the home is sold, the mortgage will be paid off from the sale proceeds. If the house still has a mortgage, both spouses remain responsible for the payments unless one refinances the loan into their name. Without refinancing, both parties could still be liable for missed payments, even if one spouse moves out.
Q11: Can I remove my spouse from the mortgage?
You cannot unilaterally remove a spouse from the mortgage. The only way to do so is through refinancing in one spouse’s name, which requires lender approval.
Q12. How do prenuptial agreements affect the marital home?
If a prenuptial agreement specifies how the home should be handled in the event of a divorce, the court will typically enforce that agreement unless it is deemed unfair or invalid. Additionally your divorce decree can deviate from the prenuptial agreements if the parties, i.e. you and your spouse agree to different terms in your divorce.
Q13: How does child custody affect the decision regarding the marital home?
Child custody is a significant factor. The court often considers which arrangement will provide the most stable and consistent environment for the children. If one parent has primary custody, they may be more likely to be awarded the home or allowed to remain in it for a set period.
Q14: What are the tax implications of selling or transferring the marital home in a divorce?
There can be tax implications when selling or transferring the marital home. Generally, transfers between spouses incident to divorce are tax-free. However, if the home is sold, capital gains taxes may apply. It’s crucial to consult with a tax professional to understand the specific implications for your situation.
Q15: Can I get temporary possession of the marital home during the divorce process?
Yes, you can request temporary possession of the marital home through a temporary order. This is often done to ensure stability and prevent disputes during the divorce proceedings. Your attorney can help you file the necessary motions.
Q16: Can I be forced to sell the marital home?
Yes, if neither spouse can afford to keep the home or an agreement isn’t reached, the court may order the sale of the home and divide the proceeds equitably.
Overall, navigating the complexities of the marital home during a divorce can be daunting.
At Cannon & Associates, we are dedicated to providing compassionate and knowledgeable legal guidance to help you protect your rights and achieve a fair resolution. You are NOT alone.
If you have any further questions or need assistance with your divorce, please don’t hesitate to contact us for a FREE Case Strategy Session. No cost. No obligation. Just free personalized advice on your case. We’re here to help you through this challenging time.