How to Keep Your Home in Divorce

Your house is more than a valuable asset. For many Connecticut residents, the marital home is the center of life for them and their children. But when the marriage ends, you may appropriately find yourself wondering how to keep the house in a divorce. Here is how Connecticut divorce judges treat real property, and what you can do to make keeping your home a top priority.

Who Stays in the House During the Divorce?

Either or both parties can choose to stay in the marital home while the divorce is pending. It usually isn’t the best idea to continue to live together with your spouse during litigation. Divorce is a highly stressful time, and being in constant contact with your soon-to-be-ex-spouse can increase conflict and make resolution more difficult. More often than not, one spouse will move out of the home until the divorce is final.

It should be noted that, because of the automatic orders entered in every Connecticut divorce, the parties must maintain the marital home while the action is pending, unless they get a court order saying otherwise. This means the parties cannot:

• Take out a home equity loan or refinance the property
• Transfer ownership to a third party
• Stop paying the mortgage or allow the property to go into foreclosure
• Fail to pay property taxes or utilities related to the property
• Exclude one another from using the marital home

However, in some cases, the Connecticut divorce court will award one party with exclusive occupancy of the home while the divorce is pending. This could occur if you are the parent caring for the children, who are enrolled in school near the home, or in cases of abuse or domestic violence.

But, there is no requirement that spouses live apart while they are sorting out their affairs through the divorce process. While it isn’t the best idea, there are diverse reasons, many of them economic, for living together temporarily while divorcing. This can also be a workable stop-gap measure in lower conflict cases if the parties resolve to be civil with each other and cooperate in any parenting and economic responsibilities.

Connecticut Property Division During Divorce

Connecticut is an “Equitable Distribution” state. That means that Connecticut judges have a lot of flexibility in dividing up the parties’ assets in a way that is fair and equitable to both parties. This will not necessarily be a 50/50 split. Instead, the Court will craft a property division that considers several factors:

• The length of the marriage
• The cause for the dissolution of the marriage
• The parties’ age, health, station, and occupation
• The amount and sources of income as well as earning capacity, employability, and vocational skills
• The liabilities and needs of each party
• The parties’ opportunities to accumulate new assets and income
• The contribution of each party to the acquisition, preservation and appreciation of the value of the assets

The Court can weigh different factors more or less heavily depending on the facts in the case, or even disregard irrelevant factors. While the cause for the dissolution of the marriage is relevant, the Court is not likely to be unduly punitive to the “at fault” party, it might attribute specific assets or marital debts differently as a result of the fault.

How Connecticut Law Treats a Pre-Marital Home

If you already owned a home when you got married, you may want to know how to keep that home in the divorce. Unlike many other states, Connecticut is an “all property” state. That means that Connecticut divorce judges have the authority to divide “all property” belonging to either spouse, no matter when or how the property was acquired. That means even a pre-marital home can be divided if doing so is fair and equitable, such as if the home was refinanced or paid off during the marriage, or the other spouse helped to maintain the property. However, if one person owned the property prior to the marriage, is the sole title owner, and kept the property separate throughout the marriage, it may well be fair for that party to be awarded the property in the divorce, with no offset or claim by the other spouse.

How to Keep the House in a Divorce

If keeping your home is your top priority in a divorce action, there are ways to do that. However, you should be prepared to offset the equitable value of the property. Each piece of real property in a divorce is worth the price it could be listed for minus the balance of the mortgage and any loans against the property. This net value is what will need to be divided.

By Agreement

If you and your spouse are able to come to a property settlement agreement either through the Collaborative Divorce process, mediation, or negotiations during litigation, then you both will control what happens to the house in your divorce. This could include:

• Set-Offs where your spouse receives additional assets from the rest of your marital estate to account for his or her share of the equitable value of the home.

• Buy Outs where you will pay your spouse for his or her share of the equitable value of the home either as a lump sum at the time of divorce or over time.

• Refinancing where you take out a new mortgage to pay off your spouses equitable share of the property and remove your spouse’s name from any financial obligations related to the home.

• Joint Ownership as Tenants in Common where you continue to share interest in the property after the divorce is entered, usually for a set period of time (such as the graduation of the youngest child) after which the property is sold.

• Sale of the Home where the parties agree to list the home for sale with a realtor and divide the net proceeds. This is most common when neither party can afford the mortgage alone or where there are no other significant assets to offset the value of the property.

In Litigation

If you are unable to come to a resolution, your divorce action will eventually go to trial. That means it will be up to the judge how all the contested property will be divided. While your attorney can advocate for you to keep the home in the divorce, it is up to the judge to craft a fair and equitable property division using the factors outlined above. The Connecticut court could order any of the above options, and the parties will both have to live with the result.

Who Pays the Mortgage After Divorce?

Most of the time, the party who is awarded a piece of real property in the divorce will also be required to assume financial responsibility for the property. This often will require that the property be refinanced (as discussed above). If the property will be sold, the court will usually require the parties to maintain the “status quo,” with the parties continuing to pay mortgage and utility bills related to the home until it can be listed and sold.

Get Help Keeping Your Connecticut Home in Divorce

If keeping your home in your divorce is a top priority, you’ll need an attorney who can help you strategize, negotiate, and advocate for a fair property division that keeps that priority in mind. The Connecticut divorce attorneys at Lawrence & Jurkiewicz, LLC represent divorcing spouses throughout the greater Hartford area and the Litchfield County area. We can help you protect your home during and after the divorce, and advocate on your behalf to ensure a fair and equitable property settlement. We offer consultations by in-person appointment, phone conferences and zoom meetings. Please call us at (860) 264-1551 or contact us to schedule a confidential consultation to see how we can help you.