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Who gets the house in a divorce in Massachusetts

Who gets the house in a divorce in Massachusetts

Posted on April 12th, 2016

The topic of which party will receive the house is often a heated issue in divorce cases within the Commonwealth of Massachusetts. Many separating spouses tell the other spouse, “You’ll never get this house!” or “The Court will give me the house in the divorce and you’ll get nothing!”

If you’ve said this to your spouse or heard this from your spouse, this page is for you.

While it is true that the court could possibly award one party a house in the divorce, it is unlikely absent some extremely compelling reason to do so. Most often we take such threats that a spouse is going to get a house in the division of assets with a grain of salt and it is of no concern to us. However, there are circumstances where one party can make a valid argument to receive a house during divorce.

This page discusses when the court might award a house to one party over the other, when those orders can occur, and when the court may issue a “deferred sale” order.

“Awarding” a house to one party as a Temporary Order

There are a limited number of ways that the court has the authority to force a divorcing litigant out of his or her home while a divorce matter is pending. One way is where the court grants a domestic abuse prevention order (i.e. a “restraining order”) under section 209A. When the court grants a restraining order, which can be up to one year in length, the abusing party is forced from the home and may not return.

If no restraining order is issued, the court may order one party to have exclusive use and occupancy of the residence under Chapter 208, Section 34B, for up to 90 days, when it is shown that there is a substantial danger to the other party or children. The 90-day period of time can be extended by motion.

When one party is allowed to stay in the marital home as a result of a 209A restraining order or Section 34B order, it does not mean that the other party that is forced to leave no longer has an ownership interest in the house. Orders under these sections are “temporary” in nature and do not create a final judgment. Likewise, the person forced to leave still maintains whatever ownership interest they enjoyed prior to being forced out of the marital residence.

“Awarding” a house to one party as a Permanent Order

If the court is forced to make a decision whether one party will receive a family home in the divorce proceeding, there are a myriad of factors the court will have to consider before allowing such an arrangement. The list of factors is set forth in Chapter 208, Section 34, which include the following considerations:

  • Length of marriage
  • Conduct of parties during marriage
  • Age and health of the parties
  • Occupation and income of the parties
  • Opportunity of each of the parties to earn income
  • Present and future needs of children
  • Contribution of the parties to the acquisition and preservation of assets and contributions as a homemaker.

These are all the factors that the court will think about when determining how to divide all assets and debts in a case, not just a marital residence (although that is often the largest single asset owned by a couple).

We have provided a list of common cases where the court might consider awarding a house to one party, below.

In what common circumstances can the court award a house to one party in divorce?

There are circumstances and cases that may warrant one party receiving a house in the division of assets in divorce. Here are the most common ways where it will be even a remote possibility that the family court judge will consider awarding a home to one spouse over the objection of the other spouse:

  • When there are sufficient assets to offset the equity value. This means that if there are other assets that one spouse could receive instead of the equity in the house, one spouse may be permitted to retain the marital home asset.
  • When one spouse wants the house and provides a “buyout”. Often, parties wishing to buy out the other party’s interest in the family home will provide evidence at trial that establishes a value of the home (through appraisals usually) and evidence that they qualify for a new loan to allow for a payment to the other spouse.
  • When there is no equity in the home. If there is no equity in a home, and one spouse wants the home and proposes a solution where the other spouse will not be liable (for example, if that spouse is not even on the mortgage obligation to begin with), the court will probably allow one party to keep the house.
  • When one spouse has acted so egregiously that the interests of justice require the court to award a property to the other spouse. There are cases where one spouse has lost thousands of dollars gambling, has caused other financial hardships to the parties, and so forth.
  • When there has been a very long term marriage and one spouse would not be able to acquire a similar property in the future.
  • When a spouse wants to retain a home for dependent children. In these cases, however, there must still be a plan to “buy out” the other party’s interest in the equity of offset an interest with other assets.

What is the default way to award a house in divorce?

The most common way to deal with a marital home upon divorce is to order the home to be sold. Of course, parties are always free to make agreements as to how they would like to divide their assets. The law of equitable division presumes that each party will have a 50% interest in the equity in the home, although the statutory schema for property division do not have this specific language. Judges have the authority to divide a home 60/40 or 70/30, or some other split, but most family law practitioners will say that the “default” is a 50/50 division.

As mentioned above, the court has the authority to not order the house be sold but instead order the house to one party or the other, but there has to be some reason for doing so and there must be a plan to ensure the out-spouse is not going to be tied to the property and mortgage.

Is it possible that the family court can defer the sale of my house in Massachusetts?

Yes. Under the current case law in Massachusetts, family court judges have the power to order the deferred sale of a residence when the needs of dependent children warrant such an order. In cases like Hartog, LoStracco and Pestana, the judges were allowed to find that it would be in the children’s best interest to order a deferred sale of a marital home. These cases are somewhat rare, and deferred sale orders and judgments are not typical.

Getting an appraisal

At trial, evidence is key. If you are trying to establish a value for real estate because you are trying to obtain a judgment allowing you to retain the home or because you are trying to obtain a judgment forcing a sale, you need to have an expert appraiser provide a written valuation and testify at trial.

Other possible evidence that the court will consider is a real estate agent’s opinion based on a comparative market analysis, tax records, and the owner’s opinion of value. However, these alternatives are not as persuasive, generally, as an appraiser’s valuation.

Figuring out what will happen with the mortgage

If you are seeking a judgment allowing you to retain a residence, it is best to obtain a pre-approval for refinancing the mortgage in your name alone prior to trial. This way, you can establish at trial that you have applied for and qualify for a mortgage in your name alone and the other party’s name can be removed.

Agreements

By far the best way to resolve a dispute pertaining to how to divide a house is to eventually reach an agreement. Parties are free to craft their own agreement, which may include “outside the box” thoughts to resolve the dispute. For example, many parties agree that one party will retain the marital home but they have to refinance the property within a period of months.

The issue of dividing assets in divorce can be extremely complex and challenging. We have decades of experience in divorce actions where substantial property is to be divided between parties. We have reached countless agreements to award a marital home to one party or another, and we have litigated countless more cases where the issue of asset division is a major component of the case.

We are here to help. We are conveniently located in Boston and New Bedford and offer a free, private consultation. Contact us today and we will be happy to speak with you.