Who Gets the House in a CT Divorce?
January 24th, 2022
During the divorce process, you will have to take inventory of every asset that you and your spouse own. For most people, their home is their largest asset. Figuring out what to do with the marital home can be a major challenge in a divorce. The following is an overview of what you need to know to approach who gets the house in a divorce.
How Is Property Divided in a Connecticut Divorce?
In a Connecticut divorce, a court will look for the most equitable way to divide property between the spouses. Even if the parties reach a settlement in a “nonadversarial” divorce, the court will have to make sure that the settlement is fair. Courts often pay close attention to how the divorce settlement deals with the home.
Please note that, if you and your spouse have reached an agreement with the assistance of divorce attorneys, the court will most likely approve your agreement. State law requires the judge to review the settlement agreement to make their own determination that it is “fair and equitable.” Your attorney can guide you through this process.
The marital home is an asset just like any other in a divorce case, although it serves unique and important purposes. The court will take this into account, especially if the spouses have one or more minor children who live in the home.
Does Connecticut Recognize Marital and Non-Marital Property?
While some states make a distinction between marital and nonmarital property, Connecticut is not one of those states.
Connecticut has an “all shares” system for how it allocates marital property distribution. In other words, the court has jurisdiction over all of the spouses’ property regardless of when the property was acquired. The court will divide and distribute the property in any way it deems necessary to achieve a fair and equitable result. Courts view judgments or settlements as a mosaic of pieces that must be recognizable as a “fair and equitable” whole when assembled.
A house purchased before the marriage and still titled under one spouse’s name may be divided in a divorce. However, a judge may consider it fair and equitable that the spouse who purchased the marital residence gets the house in a divorce or compensation for the contribution.
There are many factors that a court must consider when deciding asset division. For example, a court will likely consider the following:
- Earning potential
- Duration of the marriage
- Overall contribution to the marriage
It’s important to consult with a qualified Connecticut divorce attorney to discuss division of assets if you are considering a divorce.
Equitable Division of Property
A court will want to know whether or not the home is marital property, but this is far from the most important question. Connecticut law gives courts the authority to divide both marital and nonmarital property between the spouses in a divorce. Courts usually award spouses their own nonmarital property, but sometimes dividing it is the equitable thing to do.
An “equitable” division of property is not the same as an “equal” division. Splitting the marital property exactly 50/50 is rarely possible. Courts try to achieve as close to “equal” as possible in most cases, but compromises are often necessary.
Mortgage debt is another important factor to consider. If one spouse gets the home in the divorce, they could end up solely responsible for the mortgage. A court will want to make sure that this spouse is able to keep up with the payments.
What About the Mortgage?
A mortgage presents several complications in the division of property. First of all, spouses do not exactly “own” a mortgaged home in its entirety. Suppose a married couple owns a home valued at $250,000 with a mortgage balance of $125,000. The lender has a claim on half of the home’s value. If they ever default on the mortgage, the lender could foreclose and sell the home.
The important value in a divorce is the spouses’ equity in the home, which is $125,000 in this example. If one spouse receives the home in the divorce, the other spouse might want something of equal or similar value. Depending on the spouse’s financial situation, this could mean buying out the other spouse’s share of the equity or finding roughly $62,500 worth of marital property to award the house in a divorce to that spouse.
Contract law presents another challenge. A mortgage loan is a contract between a lender and one or more borrowers. While Connecticut courts have rather broad authority when it comes to dividing property in divorce, they cannot modify the terms of the contract between the spouses and their mortgage lender.
Suppose the spouses both signed the loan agreement. If a court awards the home to Spouse 1, along with responsibility for paying the mortgage, the lender could still hold both spouses responsible for payment. Spouse 2’s credit would be at risk if, after the divorce, Spouse 1 defaults on the mortgage. Refinancing with a new mortgage in Spouse 1’s name is a possible solution. Your lawyer can help you identify options in situations like this.
What If the Kids Live in the House?
Any order affecting a minor child in a divorce must be in the “best interests of the child.” This term is ambiguous on purpose. It leaves decisions about individual children’s “best interests” up to individual courts.
Maintaining stability for children during and after a divorce is very important. Courts in Connecticut like it if a child can make it through a divorce without having to move or change schools. A judge will probably go to great lengths to make sure a child can continue living in the marital home for as long as possible.
How Can One Spouse Keep the House After the Divorce?
This post has identified several possible ways for one spouse to keep the house while providing the other spouse with an equitable share of the marital property:
- One spouse buys out the other spouse’s share of the home’s equity.
- One spouse receives the home, and the other receives other marital property of approximately equal value to half of the equity.
- One spouse refinances the home to obtain cash to buy out the other spouse, to remove the other spouse’s mortgage obligation, or both.
- Another option is to sell the home and split the proceeds, but not everyone wants to do this.
Lawrence & Jurkiewicz: Torrington, CT Family Law Attorneys
The family law attorneys at Lawrence & Jurkiewicz can help you identify which marital property and can prepare you for property division in your divorce. We represent clients in Hartford and Litchfield County who are dealing with difficult issues like divorce. To schedule a confidential consultation to see how we can help you, please contact us today online or at (860) 926-1697.