For many families, their house represents their most significant investment.
But more than that, your house is your home, it’s where your children came home after they were born, where they opened their first Christmas presents, where your memories are made. The family home isn’t just an asset to negotiate, it’s often tied to feelings of safety, security, and your sense of place. It can contribute to your children’s stability and sense of continuity after your divorce.
Divorce will likely turn your two-income household into a one-income household. A mortgage that was affordable for a dual-earning household might not be affordable for a single-earner after divorce. This is why sometimes the higher earner in a divorce might ask if they can keep the house if they are the only spouse who can afford it.
Beneath this question is a deeper concern: how will we divide our assets during our divorce, and what happens if the home is one of our biggest shared assets?
It can be helpful to investigate this question through the lens of Washington state’s community property and equitable division laws.
- Who Owns the House in Divorce? Washington State’s Community Property Laws Explained
- Who Keeps the House in Divorce? Washington’s Just and Equitable Division Laws
- The Asset and Debt Spreadsheet
- What Can Happen if Home Equity Gets Divided?
- Options for Keeping the House in Your Divorce
- Why Keeping Disputes Out of Court is a Good Idea
- Next Steps
Who Owns the House in Divorce? Washington State’s Community Property Laws Explained
When deciding who gets to keep the house in divorce, Washington state courts will evaluate whether the property is characterized as separate or community property.
Washington is a community property state, which means that property purchased during your marriage using community income is typically considered jointly owned property, regardless of whose name is on the title.
Yet, property can be characterized as separate in certain situations. For example, inherited property or property gifted to you may be separate property even if you received the inheritance or gift during the marriage.
Property that has been characterized as separate property under a prenuptial or postnuptial agreement may also be categorized as separate property. Property you owned prior to your marriage may also be considered separate property, provided you maintained the character of the property as separate during your marriage.
It’s important to note that your spouse may still have a claim on separate property. We’ll get to that later.
When you and your spouse file for divorce, your divorce lawyers will identify all property and determine when the property was acquired (prior to your marriage or after). When the property was acquired is a key factor in determining whether the property is characterized as separate or community property.
Your divorce lawyer will also look to see if any community income was used to maintain or improve separate property. Certain actions can result in your spouse having a claim on separate property.
Because of this, there are a range of situations where the very classification of the property as separate or community property might be up for debate. And there might be situations where a portion of the equity may be considered shared community equity, and where a portion of the equity may be considered separate.
If you aren’t sure about whether the home you wish to keep is separate or community property, our family lawyers in Olympia, Tacoma, and Seattle, Washington can review your situation and offer guidance.
Who Keeps the House in Divorce? Washington’s Just and Equitable Division Laws Explained
If your home is characterized as separate property, it may be yours to keep in the divorce, though there are certain situations where this might not always be the case.
Let’s look at the exact language of Washington state’s law regarding just and equitable distribution under RCW 26.09.080. “In a proceeding for dissolution of the marriage or domestic partnership… the court shall, without regard to misconduct, make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors.”
Note that the language for just and equitable distribution includes “either community or separate” property.
So, how does this work in practice?
We need to look at the asset and debt spreadsheet.
The Asset and Debt Spreadsheet
Typically, when a couple files for divorce, our lawyers will create an asset and debt spreadsheet. This spreadsheet includes all assets, including separate and community property. After everything has been accounted for, the courts will try to “equalize” both parties. How this equalization is performed depends on whether your marriage was a short marriage (under 5 years), a mid-range marriage, or a long marriage (over 20 years).
With a longer marriage, the courts might be more inclined to split all assets, including separate and community property down the middle. In a long marriage, it can be difficult to distinguish between separate and community property without a prenup. So much time has passed; many of the assets will have likely been commingled into shared interests.
With a mid-range marriage, the courts might look more closely at what each spouse brought into the marriage but will also lean to keeping each spouse financially secure for the rest of their lives. A lower-earning spouse, or one who stayed home to raise the children who cannot easily re-join the workforce might be entitled to more property to ensure their ongoing security. This property may sometimes include separate property.
And with a short-term marriage, the courts tend to favor returning each spouse to their position before the marriage. Separate property brought into the marriage is more likely to be characterized as separate, while the court might also factor in each spouse’s contribution to the community fund.
If either party can claim equity in the home, the home will need to factor into the equalization described above.
Yet, how that equalization happens in practice can vary widely.
In many cases, the house is sold, and any of the shared proceeds are split after bills are paid.
Yet sometimes one spouse wants to keep the family home. In this case, the spouse keeping the home would need to buy out their spouse’s equity (that is, compensate their spouse for their share of the home’s value), and be able to refinance the mortgage, if the house is mortgaged.
So, while the spouse who can afford to refinance the mortgage will be more likely the one to be able to keep the house, their obligation to compensate their spouse for their equity doesn’t go away.
So, what happens with the family home can be highly variable, depending on whether a case ends up before a judge, or whether both parties decide to negotiate their divorce settlement in private.
According to Professor Terry Price, executive director of the graduate programs at the University of Washington Law School, “In Washington, the court has great discretion—it just has to make a just and equitable distribution of the property. And that is not 50-50, that is just and equitable, so the court could decide that because of the needs of one party a just and equitable division would be 60-40…”
This means that the outcome can vary from judge to judge, and court to court. And it can vary depending on the strength of the argument that each party’s lawyer makes to the court.
The key takeaway is this: when couples take their divorce and house disputes to court, it can be difficult to predict what a judge will do. Your family lawyer might be able to walk you through different scenarios and possibilities, but judges are people, and people can be difficult to predict.
If you are indeed the only spouse who can afford the house, it’s important to keep in mind that the courts tend to shy away from divorce settlements where one spouse ends up destitute, homeless, and seeking government benefits, while the other keeps all the property and assets and the family home to boot.
Even if the property is yours on paper, and even if you are the only one who can afford the home, the courts might seek a just and equitable distribution of shared and separate assets that gives your spouse a roof over their head.
This might come in the form of a court order for alimony so that they can get their own place and pay the rent; or the court might distribute property in such a way as to ensure that your lower-earning, or non-earning spouse doesn’t end up homeless. This can come in the form of a court order forcing you to sell the home and split the proceeds.
To go back to the original question: “Can I keep the house in divorce if I’m the only one who can afford it?” In a situation where one spouse can buy-out the other spouse’s equity, yes, you may be able to keep the home, if you can negotiate a settlement with your spouse.
But other factors can play a role in who keeps the house. If your spouse has the children most of the parenting time, the court might award the residential parent the house. Instead of alimony or even in addition to it, the court might award property to the lower-earning spouse, and this can come in the form of the house. In this case, the alimony award would help the lower-earning spouse afford the home.
And while you might be more likely able to keep a home classified as separate property, the courts can look at the whole financial picture when making decisions. If you have a high income that can support the purchase of another home, but your spouse has been unemployed and caring for your children for the duration of a mid-length or long marriage, these facts might factor in a judge’s decision.
What Can Happen if the Home Equity Gets Divided?
What tends to happen in many cases is that the court finds that both spouses are entitled to a share of home equity.
But this creates a conundrum. It’s not like you can split a house in half, and most divorcing couples don’t want to continue living together.
Something has to give.
In many cases, where both spouses are on relatively similar financial footing, the house is sold.
Many couples simply choose to sell the home and split the profits. In this scenario, it generally doesn’t matter who can afford the family home because both spouses take their share of the equity (the profit from the sale) and move on.
In other situations, one spouse might buy the other’s spouse’s equity, or share of the family home, to keep it. If you are the only spouse who can afford to maintain the house, and if you have liquidity, this might be one way for you to keep the house, while compensating your spouse for their share of the home’s equity.
If you are the only one who can afford to maintain the home, you and your lawyer can also explore offering your spouse a larger share of other assets or investments to compensate them for their equity in the home.
These are just some of the options that may be available to you. Each has its benefits and drawbacks. As family lawyers, it’s our job to talk you through options and help you choose one that works best for your family.
Options for Keeping the House in Your Divorce
In cases where only one spouse can afford to maintain the family home, but the other spouse has equity in the home, the options for keeping your house in divorce include: buying your spouse’s share during the divorce, or giving your spouse a larger share of other assets or investments to compensate them for their home equity. This is assuming you own your home outright.
If you have a mortgage, to keep the family home, you’ll likely need to refinance the existing mortgage.
It is important to keep in mind that your interest rate will likely be higher than when you purchased it (interest rates have gone up), and you’ll likely have to refinance for the current value of the home to have the liquidity to pay your spouse for their share of equity.
The question then is—how much do you want to keep the home, and does it make financial sense?
Cindy Scobee, a Certified Divorce Lending Professional® explains, “What can be a legal option, might not be a mortgage option.” A Certified Divorce Lending Professional bridges both worlds—helping you understand what you can afford today, and what kind of divorce settlement you’ll need tomorrow to be able to meet your goals. Cindy Scobee explains, “Many clients want to assume their current mortgages, and a CDLP® will always review whether that is a viable option.”
When couples choose the collaborative divorce process, they might work with a Certified Divorce Lending Professional to advise them, so that their settlement sets them up for mortgage approval later. A CDLP can also serve as a personal advisor to a client in a contested divorce to help them meet their goals.
Why Keeping Disputes Out of Court is a Good Idea
When a dispute of the family home goes to court, couples often lose control over the outcome. The judge has great discretion in deciding how to divide equity, and a judge can even order the sale of the home.
In our experience, when couples can’t decide what to do about the family home, the judge will set a deadline by which the house must be in contract. If the home isn’t in contract by the deadline, the judge can order that you and your spouse reduce the price of your home to push a faster sale. In some cases, our attorneys have seen clients forced to sell their homes during a downturn and at a loss.
The judge can even set the market price of your home. Judges aren’t real estate agents or professional appraisers. Some judges will order an appraisal, but others might look at available data, which can include available data, tax assessments, or comparable listings in your area.
If the home is going to be sold, being able to price your home yourself can matter.
Bliss Ong, Redfin Principal Agent based in the Seattle area with over 10 years of experience explains, “No other method can compare to having a local agent price your home because they know how to place value on seller upgrades, neighborhood amenities and or community features that not only support a home’s monetary value but place a value on the sentimental history of the home as well.
A local agent’s expertise and experience in selling homes, curating relationships with buyers and sellers, and years of experience provide a hidden view that common data methods cannot provide.”
A real estate agent can help you and your spouse think about timing the sale, and other factors.
But if now isn’t the most profitable time to sell your home, you might have no choice but to do so if a judge orders it. Divorcing couples are already facing unexpected costs—there are legal fees and filing fees, and the costs of dividing one household into two. A forced sale of the family home can lead to more costs, including commissions to real estate agents, listing fees, and additional legal fees involved in the sale of a home.
By choosing to settle your case out of court, using the collaborative divorce process or a mediator, or through a settlement agreement, you and your spouse retain control over the fate of your home and over your investment.
Our family lawyers can help families find creative solutions. Some families choose to keep the home, with one spouse continuing to pay the mortgage instead of alimony. Other families might find creative ways to divide assets and investments so that one spouse keeps the home and the other leaves with a fair settlement.
A family lawyer familiar with Washington’s community property laws can review your situation and offer guidance. When a divorce case goes to court, you lose control over the process (the court sets the date and can even set the price), and you can lose the ability to make choices for yourself, especially if a judge issues a ruling neither spouse wants.
Next Steps
Keeping decision-making in your hands and not a judge’s is why collaborative divorce approaches tend to produce outcomes both spouses can live with.
Truce® attorneys practice collaborative divorce law, mediation, and negotiation — and lead with de-escalation in every matter, including contested ones, because better outcomes usually come from lowering the temperature, not raising it.
House and property questions are often where divorce gets most complicated. Ready to talk through your situation? Reach out to us for a Case Evaluation.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.