Can a NC Divorce Judge Force You to Sell Your Home?

For many couples, the marital home is the most important thing you own. It is the center of your life, a sentimental reminder of your children, and possibly the most valuable asset you own. Can a North Carolina divorce judge force you to sell your home and give all that up? Here are your options.

Your Home Is Generally Part of the Marital Estate

Generally, anything you or your spouse earned, obtained, or accumulated from the date of the marriage to the date of separation is part of the marital estate, subject to division by the court. In most cases, that includes your home. If your equitable distribution case goes to trial a North Carolina family law judge will decide an equitable division of the entire marital estate. Equitable does not always mean equal. If there are not enough other assets to give your spouse his or her share of the home equity, the judge could order that the house be sold and determine how the proceeds will be split.

When is a Home Separate Property?

Sometimes, a house may be separate property:

• When one spouse owned the home prior to the marriage
• The home was inherited or received as a gift
• The house was purchased after the parties separated

The fact that both spouses lived in the home isn’t necessarily the deciding factor. Instead, the judge will look at the funds used to purchase and maintain it. Note that, a house that began as separate property can become partially marital if the parties used marital funds or efforts to cause it to change value over the course of the marriage. This could look like:

• Using post-marriage wages to pay off a pre-marriage mortgage
• Working together to make home improvements
• Paying for household repairs using a joint bank account
• Taking out a second mortgage in both parties’ names

These forms of “active appreciation” entitle the non-owner spouse to a share of the change in value that occurred during the marriage. Determining the appropriate values for this calculation can be complicated, and your North Carolina divorce attorney may recommend hiring an appraiser or a forensic accountant to help.

Does it Matter Who Moved Out When the Parties Separated?

Remember that in a North Carolina divorce, you and your spouse must live separately for a year and a day before filing for divorce. Who moves out of the marital home doesn’t necessarily dictate who will be awarded the home in the divorce; however, it can be harder to get back into the home once you have left. If you have children and they remained in the home, the divorce judge can consider custody of the children as one factor in deciding who should get the marital home.

Can You Afford to Keep Your Home After Your Divorce?

Most North Carolina divorces don’t go to trial. More often, spouses come to agree on an appropriate property division. You and your spouse may agree:

• One party keeps the home and the other receives other assets (such as a 401k or bank accounts)
• One party keeps the home and refinances it to pay the other party his or her equitable share
• One party keeps the home until the youngest child graduates from high school, at which point the house is sold and the proceeds are divided
• Sell the home and divide the net proceeds

Home ownership can be a point of pride, but you must be practical in deciding which property division is right. Carefully consider your post-divorce budget based on your own income, child support, and alimony to determine whether you can afford to keep the home before you fight for it.

Can You be Forced to Sell Your Home?

Yes. A judge can force you to sell your home if:

• There are not enough other assets to give each party his or her share of the marital assets, or
• You are unable to refinance your mortgage to remove your spouse’s name and pay your spouse’s share of the equity

If the judge decides that your interest in the home cannot be split without hurting you or your spouse, he or she can force you to sell your home, pay off the mortgage, and divide the net proceeds.

Protect Your Home During Divorce

At the Cox Law Firm, our experienced and compassionate divorce attorneys know how important a home can be. We will help you protect your home and its value. We will give you options to avoid being forced to sell your home as part of the divorce. If you are ready to get started, please get in touch with the Cox Law Firm by calling  704-243-9693 or visiting our  Contact Page.