Who’ll get the house in your divorce in Washington State? These are the factors our firm believes judges weigh most heavily. They’re in rough order from most important to least. To read our enhanced article on the same subject, visit https://www.genesislawfirm.com/who-ge….
1st Factor: Enforceable Agreement.
If the parties enter an enforceable agreement regarding the house, the judge almost always adopts it. Enforceable agreements can take a bunch of forms. Examples include prenuptial agreements, post-nuptial agreements (which are prenuptial agreements signed during the marriage), separation contracts (which are contracts signed when the parties informally break up), and settlement agreements (meaning agreements signed during the divorce or made in court “on the record”). So whoever you’ve agreed should get the house probably will, assuming the agreement is signed or on the court record.
2nd Factor: One Party’s Separate Property.
Courts usually award each spouse his or her separate property and divide community property 50/50. If the house is entirely one spouse’s separate property, that person almost always receives it unless the parties agree otherwise. If you want to learn more about how Washington determines whether property is separate or community, we have a free article on our website at https://www.genesislawfirm.com/commun….
3rd Factor: Partly Separate, Partly Community.
Often the house is partly separate property and partly community property. In that scenario, the spouse with the separate interest is more likely to receive the house, though the outcome is less certain than if the house were completely separate property. For example, the down payment may have come from one spouse’s separate pre-marriage funds, but the mortgage might be community debt. The party who paid the down payment with separate pre-marriage funds is more likely to get the house.
4th Factor: Who Can Afford.
Courts try to avoid awarding the house to a party who can’t afford it. This is especially true when the mortgage is in both parties’ names. If the mortgage is in both people’s names, failure to pay it would hurt both people’s credit scores. This isn’t as likely to be relevant for mid-length or long marriages, because the lesser-earning spouse usually receives child support and/or spousal maintenance (alimony). That often makes the home equally affordable for either party. The house can go to whoever the judge wants regardless of this factor.
But in dissolutions of truly short marriages, there tend to be no children or maintenance. In those cases, the higher earning spouse generally receives the house unless it’s the other party’s separate property. Or the court forces the parties to sell it.
5th Factor: Keep Business Running.
If one spouse runs a business closely entwined with the house, that person is likely to receive both the house and the business. An example would be a spouse who runs an adult-care facility from the family’s spare bedrooms, or maybe a daycare.
6th Factor: Keep Kids in Family Home.
If the parties have kids together, judges try to keep the kids in the former family home. This is for the children’s comfort and emotional stability. Net result: 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. It’s listed here as the 6th factor, but it probably rises to the 2nd factor when judges or commissioners are making a temporary decision.
Temporary orders, by the way, are something a party can request during the pendency of the case. The average divorce takes almost a year. As you can probably imagine, that’s a long time to wait for certain kinds of relief. Parties sometimes need temporary orders to help them get through that year.
7th Factor: 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 avoids an additional relocation.
That’s it! Hopefully this was helpful. Our firm believes in making quality legal information available for free online. For more, visit the resources section of our website, https://genesislawfirm.com. From all of us at Genesis, best of luck with your family law matter!
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