Who Gets the House in an Oregon Divorce?
Divorce often brings out the worst in people, and aside from fighting over children, one of the biggest disputes in a divorce is often the award of the marital home. It’s often the most significant asset a couple has, and– especially if there are children in the marriage– the marital home may have substantial practical and emotional significance.
The answer to the question of who ultimately will be awarded the house in a given divorce is long, complicated, and will depend on many factors. But with this article, we’ll try to break it down a bit.
Who Gets To Live In The House During A Divorce?
Unless there is a specific court order otherwise, both spouses can remain in the marital home during the divorce. However, this may not be a great idea if the parties do not get along. Arguments can develop. Tensions can rise. Intimidation or physical fights can even break out in volatile divorce cases.
If a spouse wants exclusive use of the marital home during the divorce, they would typically need an agreement with the other spouse, or a court order. Court orders for exclusive use of the home are common, and they are called “temporary relief.” Your divorce lawyer can help you draft and file the motion, declaration, and proposed order. You may need to have a hearing, and the judge can grant your request, deny it, or order an alternative solution.
How Is The Marital Home Valued?
In most divorce cases, the value of the house is disputed. One spouse may argue it’s worth a lot more than the other spouse claims. A common way to estimate the value of the home is to have a licensed Oregon Realtor do what’s called a Competitive Market Analysis (CMA). This is typically done by a Realtor based on goodwill, and perhaps a hope that if the home were to be listed for sale on the open market, that the Realtor would assist in the sale.
What If The Deed Is Only In One Party’s Name?
Many people mistakenly believe that whoever has a bank account in their name only, a car titled or registered only in their name, or real estate deeded only in their name, that it’s off-limits in the divorce. This is incorrect. The divorce judge in your case will have broad power to consider assets including the marital home as marital property, and to divorce up the value of the assets without regard to who owns the asset on paper.
What If One Party Paid The Mortgage For Years?
There is a rebuttable presumption in Oregon that both parties have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held. This means that even if a spouse is not paying part or even any of the mortgage is still contributing to the marriage. This is tough for many people to accept, but it’s the law in Oregon. Historically, this was to protect wives– homemakers who did not contribute directly financially to payment of the house, but contributed substantially in labor and upkeep. Oregon is not a community property state, but Oregon does recognize marital assets.
What If One Party Did All The Work On The Home?
Again, there is a rebuttable presumption in Oregon that both parties have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held. This means that even if a spouse is a bum and watches TV while the other spouse does all the home repair or landscaping, there is a rebuttable presumption they contributed equally. This is very difficult for many spouses to accept but keep in mind the key phrase: rebuttable presumption. Speak with your attorney if you believe that your spouse did not contribute equally to the value or upkeep of the family home.
Can One Party Buy The Other Out?
Yes, and this is common. If there is equity in the house, if one party wants to remain in the home, and if that party has the means, they might refinance the home in their name only and withdraw some of the equity in the home in cash– to give to the other party. In other cases, the party might not need to refinance the house in order to access funds, and instead they might pay out of other assets in the marriage including retirement funds or other investments. This is often called a “buy out.”
What Happens If The Home Is Sold?
If the house is sold based on an agreement of the parties or a court order, most of the details of the sale will be in writing (e.g. who will be the agent, when will the home be listed, what will be the listing price, etc). The net proceeds after the sale of the home are placed in escrow, and will ultimately be divided between the parties. Keep in mind that the net proceeds from the sale of the home are determined after deducting various fees and expenses from the gross sales price of the home.
For example, there may have been some expenses to clean and/or stage the home to make it presentable. In some situations, substantial repairs may have been needed. At the time of sale, a mortgage or maybe even a second mortgage may need to be paid off. Then there is the Realtor commission, and various fees and closing costs. In some cases, the net proceeds are divided equally. In other cases, the net proceeds may be divided unevenly based on other financial factors in the divorce (e.g. one of the parties may have fronted the cost of repairs, one of the parties may be taking on more debt than the other and therefore might be awarded a larger portion of the home value, etc).
How Does The Judge Award The Home?
Oregon law is confined general in what are called the “Oregon Revised Statutes” or “ORS.” The specific statute that allows the judge in your divorce case to award the house or require that it be sold is ORS 107.105. In relevant part, the statute reads, “Whenever the court renders a judgment of marital annulment, dissolution or separation, the court may provide in the judgment… the division or other disposition between the parties of the real or personal property.”
Part of the reason that divorce cases often take months if not years to resolve is because the value of the equity in the marital home is often substantial. Also, the importance of stability and continuity in children often makes the assignment of the house to one parent or the other very important. If you are going through a divorce, there are two professionals you should speak with about your options: (1) a divorce attorney, and (2) a licensed Oregon Realtor. They will be able to explain your various options, and also help you avoid common pitfalls of do-it-yourself legal work.
This article features information from our recommended divorce experts at Romano Law.May 5, 2021