Who Gets the House in a divorce with children

in a divorce with kids who gets the house

Who Gets the House in a Divorce with Children

Who gets the house in a divorce is a leading question as a marriage comes to an end and we want to avoid it becoming a contentious issue during the negotiations where possible.

When there are kids involved, who stays in the house can be a very obvious decision but it also has the potential to get complicated once emotions are involved and finances are considered.  Sometimes the answer is fairly clear, and sometimes it isn’t. 

What we don’t want to do is get caught up in the emotions of it all and make it a point of conflict so that the kids feel more impact of the separation and divorce than necessary, especially when they are trying to cope with the news of their parents getting a divorce and what their new normal is going to look like. 

Is the House a Matrimonial Asset?

While I am not here to give legal advice, I can outline the facts of the law in this circumstance.

According to the divorce laws in Alberta, divorce is no fault so no matter who initiates the separation or divorce. In most cases, the family or marital home is considered a matrimonial asset, and therefore is split 50/50, unless one spouse owned the home prior to the marriage.

This is where it is imperative you speak with a legal or financial professional regarding your assets, what division of marital property looks like, your entitlement and what your financial picture looks like. Educating yourself is key before making any big decisions around your separation and divorce.

Should You Sell Your House In a Divorce?

Before you even decide who stays in the home with the children, you may be in a position where it makes financial sense to sell your family home. Property division may be the best course of action from a financial perspective, your financial interests could be satisfied in this manner through the sale.

It may be appealing for you both to each have a fresh start in a new home.

Or, you may be in a financial position where there isn’t choice in the matter because in order to be able to afford two family homes in the future, the family home will need to be sold and proceeds split between you so you have the ability to purchase your new single home.

What If You Move Out During Separation?

In Alberta, you do not lose entitlement to the home if you are the one who moves out of the home during the separation period. One individual often moves out temporarily in order to give each other physical space and establish some boundaries. In most cases, matrimonial property is divided in half in the divorce settlement, so moving out does not determine who gets the home in the process of separation and divorce.

Who Stays In The Home with the Children?

If you are in a situation where you know that you will be keeping the family home, at least in the near future, and you want to determine who should stay in the home with the children, it is important to really look at your family and living routines and situation with thoughtful consideration and care in terms of what would ultimately be best for the children; and also, what will have the least amount of negative impact on the children. 

We can build resiliency skills in our kids during this process, but also creating minimal negative ripple effects of the separation and divorce is paramount during this time, so they can focus on settling into their new normal.

If staying in the marital home is an option for you, then having the kids continue to live as they do, stay close to their daily routines, at least in the short term, will help them turn toward, adjust and settle into their new normal of having two separate parents.

Who is the Primary Caregiver of the Children In the Family?

If you are keeping the family home in the near term, then who stays in the family home with the children may be quite obvious to you. The first determinant of who should stay in the home is the spouse or parent who is the primary caregiver of the children.

If the children are attached and tend to rely on a certain parent supporting their basic needs on a daily basis, and that spouse or parent is often in the home conducting household duties and family care, then it would make the most sense for that spouse or parent to stay in the family home.

This will likely minimize disruption for the children in the short term.  We want the children to feel that the separation and/or divorce that their parents are experiencing isn’t their burden to carry and while they will definitely be supported to cope and settle into their new normal, making changes that are disruptive such as their primary caregiver all of a sudden not being present,  should be avoided for their short term feelings of safety and longer term sense of stability. 

It should be a goal between separating spouses to not cause more distress than necessary for the children, help them understand that the relationship between mom and dad is changing, and as parents, and that the parents will make sure that all that comes with the separation and divorce will be carefully thought through and steps will be carefully taken in a way that keeps their well being and best interests as the first priority.

Children need lots of unconditional love, a feeling of emotional, psychological and physical safety and a sense of belonging in the family unit – despite the change in the parent’s relationship.  Keeping their worlds as stable as possible is a critical step.

Parenting Schedule

If the parenting schedule is one where one parent has more parenting time than the other parent (this can happen for many many reasons such as age and stage of the children, attachments, work obligations and sometimes other issues such as the health of one parent) then if you are keeping the family home, it would also make sense for the parent with more parenting time in the schedule to stay in the family home with the children.

Parenting Duties

If the family operating structure has been that one parent is primarily responsible for daily basic needs and care of the house and the children, and the other parent is responsible for other duties such as driving to/from school or lessons, helping with homework or coaching teams as an example, it would make more sense for the parent who provides care on a daily basis to stay in the family home with the kids, as it would be more streamlined and parallel to what their lives have been like already. It would make sense for that parent to be the one to move out, and then be available to do the things they normally do during their parenting time with their children.

Can Ex-Spouses Continue to Jointly Own the Marital Home?

In some situations where spouses work together and decide that they want the marital home to stay in the equation, they continue to own the home jointly. 

But the parent who is staying in the home can’t financially carry or maintain the home on their own or qualify for a mortgage on their own, will make it a priority to ensure that the primary parent can stay in the home with the children, and the other parent will find suitable living for themselves and the children for visitation. 

It’s always helpful to look at all options and ensure you make the best decisions for your family, even though it may not be your first choice.

Do You Really Want to Keep The Marital Home?

Sometimes parents or spouses will have certain things set in their minds including keeping the family home. If we are absolutely set on keeping the family home, it is important to ask yourself really honest questions and if keeping the home is really is the best option. 

While we do want to maintain stability for the kids, sometimes we have to think about possibilities outside of what we believe.  It might be the life, nostalgia and memories associated with the family home are what is keeping you there, but it’s not the best decision moving forward. 

Sometimes those memories can become really heavy and it becomes emotionally taxing to stay in the family home and a fresh start might be the answer, and a move can be exciting for everyone.  The home does represent stability, but the stability that comes in a separation in divorce for kids is straight from how the parents handle themselves during this critical time.  This begins right when you tell your kids that you are getting a divorce.

You want to make sure you are handling that conversation and all the decisions that follow with careful consideration and care, and sometimes keeping the family home isn’t the answer.

What are the options for living arrangements with children in separation and divorce?

Can we Afford Two Family Homes?

Where parenting is shared, and the schedule is 50/50 it is important to set up two family homes that are as equal as possible.  Sometimes a fresh start in a new home is what a spouse may be open to. 

This is a situation where both parents then have family homes where the children can settle in at mom’s house or dad’s house.  In this circumstance it isn’t necessarily about the family home itself, it’s more about setting up a comfortable home for your children. 

This could be where one parent keeps the family home and the other parent buys an equal home or as we stated above, perhaps you sell the family home and buy two new homes.  

Is Nesting an Option?

In a ‘nesting’ situation, parents rotate through the family home and the children stay in the home. This situation requires a tremendous amount of trust between spouses, respect of boundaries and also very specific ground rules of how the house is maintained.  

Ultimately, as spouses who are parents, you want to ensure that you are putting your ego and perhaps desire to control the outcomes aside and make the best decision around who stays in the family home for the children. In separation and divorce, you want to be able to make as many decisions as possible without having to involve the courts to make decisions for us.  It takes self awareness and really focusing on the long term best interests of your kids as you move through your separation and divorce and create a new family ecosystem for you and your kids to be able to thrive.

Ultimately the decision of who stays in the family home will be one with many layers that require clear, careful thought and consideration from both spouses.  The divorce journey is nuanced and can generate unexpected conflict along the way and avoiding unnecessary stress for the family is key where possible. 

What is a Divorce Attorney vs a Family Lawyer?

A divorce attorney and a family lawyer both deal with legal matters related to familial relationships, but their areas of specialization and the scope of their work can differ. Often one or both could be involved with things like child support, parenting arrangements, a court intervention or a parenting plan.

  1. Divorce Attorney:
    • Primary Focus: As the name suggests, a divorce attorney specializes in handling divorce cases. Their primary role is to assist clients in the dissolution of marriages.
    • Scope of Work: They handle matters directly related to the divorce process, such as property division, spousal support (alimony), and drafting divorce agreements. They also deal with child custody, visitation rights, and child support if children are involved.
    • Expertise: They are well-versed in the intricacies of divorce laws, procedures, and negotiations, ensuring that their client’s rights are protected during the divorce process.
  2. Family Lawyer:
    • Primary Focus: A family lawyer has a broader scope, dealing with various legal issues related to family relationships and domestic matters.
    • Scope of Work: In addition to handling divorces, family lawyers can address a wide range of issues, including adoption, guardianship, child support, domestic violence, prenuptial and postnuptial agreements, paternity, and other family-related legal matters.
    • Expertise: Family lawyers are knowledgeable about a wider array of family laws and can provide legal guidance on various familial issues, not just divorce.

In many cases, a family lawyer can also act as a divorce lawyer, but not all divorce lawyers may handle other family law matters. When seeking legal representation, it’s essential to choose a lawyer who specializes in the specific area of need.

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