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If you are in the process of getting a divorce, you may have questions about the property division process. Specifically, you may wonder who gets to keep the family home after this process has concluded. There are several different answers to this question depending on the exact circumstances in your case.

Do You Want to Retain Ownership of the Home?

As a general rule, you have a right to seek ownership of the family home. Even if this asset is currently in your spouse's name, it is still considered a joint asset in the eyes of the law. The only exception would be if it were classified as your spouse's separate property in a prenuptial or postnuptial agreement. If this is the case in your relationship, it's unlikely that you would be allowed to obtain ownership of the house unless your spouse were willing to cede it to you.

In the event that the house is considered to be a joint asset, there are several variables to consider before making a play for it. First, you'll need to determine if you can afford the cost of owning a home. These costs include the monthly mortgage, property tax and homeowners insurance payments. You'll also need to factor in the cost of maintaining the property.

Of course, you probably won't be able to buy the house from your spouse without a mortgage. Therefore, you'll need to determine if you qualify for a home loan before asking for the property in a final settlement.

If you do qualify for a home loan, you'll then need to determine if keeping the home is a smart long-term investment. Although homes typically appreciate in value, they are more expensive to hold as opposed to stocks, bonds or other assets that also appreciate in value.

What If You Don't Want the House?

Let's say that you are not interested in keeping the house because it's too expensive to retain or because you don't qualify for a mortgage. In such a scenario, the home can be put into your spouse's name or sold. It's important to note that the house may not necessarily sell right away, which means that you could be liable for mortgage payments and other costs for several months after the divorce is final.

However, you generally retain the right to remain in the home until it is sold assuming that it is a joint asset. Ideally, the home will be appraised prior to being put on the market so that you know if you are getting the most for it. It is not uncommon for both parties to a divorce to have a home appraised by an independent party. A mediator, arbitrator or judge may be able to help resolve any disputes that might arise over how much the house is worth or the timeline for selling the property.

Make Sure to Take Your Name Off of the Mortgage If You Aren't Keeping the House

If you intend to allow your spouse to keep the home, make sure that your name is taken off of the mortgage. This is because the mortgage agreement is separate from the deed that specifies who owns the house. Therefore, if you cede ownership of the house without taking your name off of the mortgage, you could be responsible for making payments on something that you don't own.

It's important to keep in mind that your credit could suffer if your spouse doesn't stay current on a loan that your name is on. In such a scenario, the home could be foreclosed upon, and you may still be responsible for paying any balance left after it is sold by the lender at auction.

You May Want to Keep the House If You Have Kids

Keeping the house may be a good idea if you share kids with your spouse because it allows them to remain in a familiar location during a hectic time in their lives. In fact, you may be given the house in a settlement if you are a custodial parent. Furthermore, the other parent may be required to help with pay costs associated with allowing the kids to stay where they are.

However, this will largely depend on how old your kids are. If your children have not yet started school, it may be easier to move than if they are teenagers who have established social lives. Of course, if you truly cannot afford the home that you currently have on a single income, moving may be your only option regardless of how old the kids are.

Want to Learn More About This Topic?

A home is likely the most valuable asset that you and your spouse acquired while married. Therefore, it's important that you take the time to consider what you want to do with it after the marriage comes to an end. You can read more here to get the information that can help you make the right decision for yourself and any children that you may have.