Question: Who will get the house in my divorce? Answer: Though Washington State’s laws make the outcome difficult to predict, there are guidelines judges keep in mind. The following is a non-exhaustive list of the factors our firm believes judges weigh most heavily:
1. Enforceable Agreement. If the parties enter an enforceable agreement regarding the house, the judge almost always adopts it. Enforceable agreements can take many forms. Examples include prenuptial agreements, post-nuptial agreements (a prenuptial agreement signed during the marriage), separation contracts (a contract signed when the parties informally break up), and settlement agreements (agreements made on the court record or signed during the divorce proceeding).
2. One Party’s Separate Property. Courts usually award each spouse his or her separate property and divide community property 50/50. Consequently, if the house is entirely one spouse’s separate property, he or she almost always receives it unless the parties agree otherwise. For readers wanting to know more about characterization of separate and community property, please read our firm’s article on the subject.
3. Partly Separate, Partly Community. Often the house is partly separate property and partly community property. For example, the down payment may have come from one spouse’s separate funds, but the mortgage might be community debt. In that case, the spouse with the separate property interest is more likely to receive the house. However, the outcome is less certain than if the house were completely separate property.
4. Who Can Afford. Courts typically avoid awarding the house to a party who cannot afford it. This is especially true when the mortgage is in both parties’ names, as a default would hurt both people’s credit scores. Frequently the lesser-earning spouse receives child support and/or spousal maintenance (alimony), which makes the home affordable for either party. But in dissolutions of short-term marriages, there tend to be neither children nor maintenance. In those cases, the higher earning spouse generally receives the house unless it is the other party’s separate property.
5. Keep Business Running. If one spouse runs a business inextricably linked to the house, he or is more likely to receive both the house and the business. An example would be a spouse who runs an adult-care facility from the family home’s spare bedrooms.
6. Keep Kids in Family Home. If there are dependent children of the marriage, judges try to keep them in the former family home. This is for the children’s comfort. This means the party who receives primary care (custody) is more likely to receive the home as well. Courts specially emphasize this factor when deciding who gets the home during temporary orders.
7. Avoid an Additional Move. Courts also err on the side of minimizing disruptions to the parties. If only one party is currently in the former family home, he or she is more likely to receive it. Doing so prevents an additional relocation.
Additional Notes on Distributing the Former Family Home
1. Courts Rarely Force to Sell. Historically Washington’s courts have been extremely reluctant to force the sale of real estate. This makes intuitive sense. People become emotionally attached to their homes and land. More importantly, selling real estate comes with transactional costs of about 8% of the sale price, excluding federal income tax. Federal income tax applies to the extent the parties did not live in the home for at least two of the previous five years and meet various other conditions. This can sometimes increase the transactional costs to over 35%. Courts can nonetheless order the sale of the home when the parties agree to it or the court believes it is justified because of the limited alternatives for fairly dividing the parties’ net community property. Our firm has a separate article on the basics of property division.
2. Valuing the Home. If the court does not order sale of a significant asset, it should place a value upon it at a contested trial. High standards apply to valuations of real estate in court. Tax assessments and lackluster analyses are inadmissible to prove fair market values for real estate, and comparative market analyses come into evidence only under certain conditions. This might mean automated estimates from websites like Zillow and Redfin are also inadmissible.
The gold standard for valuing a house is a fair market appraisal from a licensed appraiser. Washington courts have allowed parties to testify about their opinions on the value of assets, but those cases appear to have stretched evidence rules regarding the delineations of lay testimony and expert testimony to reach that result. These cases also predate the current, codified version of Washington’s evidence rules and may be of little value now.
3. Temporary Orders Supposed to Be Irrelevant at Trial. Statutory law prohibits temporary orders from prejudicing a party’s arguments at subsequent court dates. As a result, a trial judge should not consider who is in the former family home if the spouse gained exclusive use of it through a temporary order. This is because temporary orders are issued without many of the procedural safeguards available at trial. Many trial judges are unaware of this law. If you want to bring it to the court’s attention, mention it in your trial brief and closing argument.
For more free legal articles and videos, our firm encourages you to visit our website’s resources tab in the upper right corner of the page. Or call our firm toll free at 866-631-0028 to speak with one of our family law attorneys in Snohomish County or King County, Washington.
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