The Marital Home in Divorce

One of the first and most important questions that arise for a couple facing divorce involves the family home. Despite all of the troubles that may have plagued a relationship within its walls, a house or apartment can still bring up strong emotional and psychological attachments, especially if children are involved.

The debate over who will retain possession of a shared dwelling after separation can be fierce. In many cases, a court doctrine of equal distribution will mandate that the house be sold as soon as possible as part of the liquidation of all assets. However, this practice is much easier and smoother in theory than in fact.

When child custody is part of the issue, the custodial parent generally remains in possession of the home, but with valued assets of a comparable monetary amount awarded to the non-custodial parent as compensation. These are commonly known as offsetting assets.

In the absence of sufficient offsetting assets, courts usually determine that a home must be sold as soon as possible. The timeline in this decision is based mostly on the judge or jury weighing the non-custodial parent’s needs against those of the children for a stable environment.

As a general rule, age is the main factor here. If the children are less than 5 or 6 years old, for example, most courts will hold that they will not be greatly impacted by a move. Adolescents in high school, on the other hand, necessitate a greater degree of permanence. Usually, the custodial parent remains with them in the marital house at least until the completion of this level of schooling.

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For more information on how issues concerning the marital home might come into play in your divorce, contact the experienced San Jose divorce attorneys at the law offices of Daniel Jensen, S.C. today by calling 408-296-4100.