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Can I Get the Marital Home in My Divorce Settlement?


Determining how property is distributed is often one of the most complicated aspects of a divorce, especially in long-term marriages where the couple has accumulated more assets.

The marital home is a large asset that can be a battleground between divorcing spouses. Whether property division is hammered out through negotiation outside of court or argued before a judge, there are many factors to consider. Who keeps the home is not decided in a vacuum. Who retains the home is based on when it was purchased and what other assets are in play.

At McIntyre Tate LLP, we create personalized strategies to help our clients achieve their desired outcomes. Multiple scenarios can impact the fate of a house in a Rhode Island divorce proceeding.

When One Spouse Owned the Home Before Marriage

A spouse who owned the home before the marriage has the leverage to keep the house in a divorce.

Assets are divided into two categories: separate and marital. Separate property may consist of pre-marital property, i.e., property that is owned by one of the spouses before getting married. Separate property may also include inherited or gifted property. Marital property, on the other hand, consists of all other property that was acquired after making the marriage. Our attorneys can help identify exceptions, but that is a simplified explanation.

If you owned the home before walking down the aisle, you might be able to claim that the house is separate property that you retain. If the property has increased in value, you may need to split that appreciation with your former partner. Depending on other aspects of the divorce, doing so would be equitable.

Rhode Island is one of the 41 states that follow equitable distribution guidelines. This doctrine allows the court to determine how to fairly divide marital property. What is deemed fair is not necessarily an equal split. Separate property is not subject to equitable distribution.

The other nine states follow community property guidelines, which is generally a simple 50/50 split.

When the House Was Bought After Marriage

Many couples buy a home together after they marry. No matter whose name is on the deed, a home bought in this manner is generally considered marital property. If you wish to keep the home, an appraiser can evaluate the property to determine its fair market value. You can negotiate “buying out” your spouse’s share of the home’s equity through physical payment or relinquishing another marital asset of similar value.

Transmutation of Separate to Joint Property

Even if you bought the home before you walked down the aisle, certain circumstances can transmute separate property to marital property. For example, a judge could label the home as marital property if your spouse helped pay the mortgage. Another example of possible transmutation is if you borrow against the home’s value to buy something for both of you to enjoy.

How property is classified is critical in divorce cases. Our 150 years of combined experience give us a considerable knowledge bank to help our clients argue their best interests.

Deferring the Sale of the Home

Deferring the sale of the home occurs when there are minor children. One parent lives in the house with the children. For the courts to agree to the deferment, the judge must be satisfied that the mortgage can be covered and that being in the home with that parent serves the best interests of the children.

The court determines the equitable share of the parent leaving the home. The judge sets a time period for the deferment, which can be until the youngest child graduates from high school. At the end of the deferment period, the house must be sold. The parent who has not been living in the home will receive their share of the equity at that time.

This arrangement can be negotiated or ordered by the court. Deferments ordered by the court can be modified or terminated at any time.

Having an attorney knowledgeable in Rhode Island divorce law is critical. They can argue these points on your behalf to improve the chances of a settlement that reflects your best interests.

Legal Counsel for Your Property Rights

Disagreements over property and other divorce elements do not have to be settled by a judge. Yes, there are times when that is the best solution. Our attorneys are well-versed in making effective arguments before a judge.

Issues are often resolved more quickly and fairly through negotiation. Outside of court is where creative solutions can be truly tailored to the parties involved. A mutually acceptable agreement reached by the parties – and not a judge – helps both sides move forward with their lives.

If you are considering a divorce, talk to one of our attorneys. They can help you think through your next steps.

To schedule a consultation, call us at (401) 351-7700 or submit our online form. We offer personalized support for each client and have the skill to handle even the most complex cases.

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