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Who Gets The House?

Determining what happens to the family home in a Rhode Island divorce

Deciding you want a divorce is a big step. It’s also just the beginning. Throughout the divorce process, you’ll face a myriad of issues, including child custody, parental rights and the division of marital property.

One of the biggest concerns our clients have in regards to their divorce is what will happen with the family home. While you won’t make the final decision on the outcome, you do get a say. Ideally, you and your soon-to-be-ex will be able to negotiate most of the terms of your divorce together. In instances where this isn’t possible, the court will make the decision based on Rhode Island guidelines.

In legal terms, the property and assets acquired during a marriage are referred to as “the marital estate.” Financial assets, such as stocks, bonds, retirement accounts, checking and savings accounts, and other cash-type equivalents, offer a simpler way to calculate who’s entitled to what. If you and your spouse have a joint savings account, for instance, a judge might award each of you half of the current balance.

When it comes to a family home, the division is more complex. What follows is a general overview of how property is divided in a divorce. For advice pertaining to your specific situation, contact Kirshenbaum Law Associates for an appointment with one of our divorce attorneys.

Rhode Island Divorce Guidelines Surrounding the Division of Property

To understand what property and assets you’re entitled to, the judge needs to know what assets you possessed prior to getting married and what you and your spouse acquired together. Generally, assets you acquired before the marriage are considered “separate” and those acquired during your marriage are deemed “marital.”

A few examples of separate property include:

  • Homes or land acquired before the marriage.
  • *Inheritances or gifts acquired before or during the marriage but intended only for you are yours to keep. For instance, if your parents leave you money or family heirlooms, regardless if it’s before your marriage or after tying the knot, they are typically regarded as separate property.
  • *Court-awarded settlements intended for one spouse, regardless if it’s awarded before or after the marriage takes place, are usually regarded as separate property.

*If the receiving spouse commingles the asset with the other spouse, the asset is then often considered marital property. An example of this might be an inheritance deposited into a joint account.

A few examples of marital property include:

  • Real estate purchased after the marriage.
  • Joint bank accounts.
  • *Financial assets that have accumulated during the marriage, including retirement funds, stocks, bonds, pensions, and more.
  • Vehicles acquired during the marriage
  • Businesses started after the marriage

*If a husband or wife enter the marriage with certain assets, that portion is considered “separate.” Any growth or contributions made after the spouses marry is typically considered marital property.

Equitable Division

It’s not uncommon for you or your soon-to-be-ex to have misconceptions about how marital property is divided. Often, clients come to us with the belief that all marital property will be split evenly down the middle.

Rhode Island is an equitable division state. As such, property and assets in a divorce are divided on the basis of what is fair and equitable, which may or may not mean a 50/50 division.

In determining who gets the family home, one of two things can happen. If you’re able to negotiate an agreement on the house that satisfies both you and your soon-to-be-ex, the court will likely grant your requested arrangement. If you and your spouse are unable to come to an agreement, the judge makes the decision for you. To do so, they examine a few factors, including:

  • Marital conduct including infidelity, abuse, or addiction.
  • Contributions to the house in terms of purchase, care, and maintenance, whether financial or other (i.e. that of a homemaker).
  • You and your spouse’s age, health, income and earning potential.
  • Contributions made by you or your spouse to help increase the career outlook and earning potential of the other spouse.
  • Any wasteful spending or attempts at hiding assets from your partner.
  • Custody arrangements and what’s in the best interest for your children and who can better afford to keep the house.

Your ability to work with your spouse and the factors listed above all help to determine who gets the house.

Should you stay, go or sell?

For many divorcing couples, the family home is the largest financial asset. In order to keep the divorce settlement equitable, both spouses are awarded a “share” of the home. Don’t be alarmed, this doesn’t mean you have to literally share your home with your ex. Instead, it means you and your ex are each entitled to a portion of the value of the home.

When this happens, you and your spouse have choices, including:

  • Sell the house. Any money made from the sale is awarded 50/50 or as the court sees fit. During the sale process, one spouse is typically awarded temporary possession of the home. If you have children, possession is often granted to the custodial parent.
  • Buy out your spouse’s share or sell your share to your spouse. Your attorney will help you understand the pros and cons of buying or selling your share of the family home.

How to slam the door on conflict

One of the best ways to handle divorce, not only for you and your spouse but for any children involved, is to take things slowly and avoid conflict with your soon-to-be-ex. This includes taking anything your spouse says with a grain of salt.

Remember, misconceptions regarding the division of property abound. What happens to your home isn’t based on what your spouse wants or claims will happen. Ultimately, the final decision is based on guidelines set forth by the Rhode Island Family Court. To dramatically increase your odds of a favorable outcome, consult with our experienced lawyers as early as possible in your divorce process.

Contact Kirshenbaum Law Associates at 401-467-5300, or fill out of our form, here.

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