You and your spouse bought the house together, and now you are wondering whether either of you can keep it. The answer depends on more than who wants it, and understanding your options early can help you plan and avoid surprises later.
Understanding how Massachusetts law treats the home
In Massachusetts, neither you nor your spouse automatically keeps the family home. A judge divides it equitably, which means fairly, not necessarily equally, as part of your whole marital estate.
Under state law, the judge weighs factors such as the length of your marriage, each of your incomes and future earning ability, and your children’s present and future needs. That is why having children at home can change the result.
Weighing your three options
Your options generally look like this:
- Keep the home: You buy out your spouse, often with a refinance or other assets of equal value.
- Sell the home: You sell it to a buyer and divide the net proceeds with your spouse.
- Delay the sale: In some cases, you can agree to a delay, or a court can order one, so your children can stay in the home for a specified period, after which you sell and divide the proceeds.
Each choice depends on what you can afford, so it helps to look at your budget before deciding what you want.
Checking the mortgage and taxes before you decide
Your name can stay on the mortgage after the divorce, because the lender is not bound by your divorce judgment. If your spouse keeps the home, the lender may require a new loan or its approval to take over the existing one, and your spouse has to qualify on their own income.
Taxes work separately, since under federal tax law, giving your share of the home to your spouse as part of a divorce does not create a taxable gain or loss. If you sell, you can generally exclude as much as $250,000 of profit from tax, or as much as $500,000 if you are still married and file jointly, as long as you owned and lived in the home for two or more years within the five years before the sale.
Protecting your position while the case is pending
Who keeps the house is usually settled one of two ways: you and your spouse agree on a plan, or a judge decides for you. Once the divorce action is served, Probate and Family Court automatically bars you both from selling, transferring, encumbering or borrowing against property, including your house, unless you agree in writing or a judge approves.
Speaking with a family law attorney early may help you reach an outcome that fits your family and your budget.