Will I get the House in my Divorce?
It is understandable that if you have separated from your husband or wife, or are contemplating doing so, that you want assurances about where you will end up living. Although it is one of the first questions you may want to ask your divorce solicitor don’t be surprised if they can't answer that question at your first meeting.
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It is frustrating to ask a question and not get a straight answer but divorce solicitors can't answer the question for a reason. Often, they won't know whether it is likely that you will get the house as part of your divorce financial settlement until there is more information available. That isn’t just information about the value of your property and how much is outstanding on the mortgage. Your divorce solicitor will also need to know if the mortgage company will agree to transfer the mortgage from your joint names into your sole name. If the mortgage company won't agree to the mortgage being transferred from joint names to the individual name of a husband or wife, this could lead to one partner tied to a mortgage and therefore unable to get another mortgage to buy a property to live in.
When you first separate or start divorce proceedings it is easy to fall into the trap of thinking that the answer to the question ‘‘Will I get the house?’’ is obvious either because your husband or wife walked out on you or you are the children’s main carer or you owned the house before your marriage. Whilst you may be understandably angry about your partner’s behaviour the bottom line is that behaviour is only rarely taken into account when deciding on who gets to keep the house and how the other assets are divided between you. It is still tempting to want to raise your partner’s unreasonable behaviour in the hope that it will influence you getting the house but the reality is that it is highly unlikely to do so, but raising behaviour will increase your legal costs.
If you think your divorce solicitor is dismissing your concerns about your husband or wife's unreasonable behaviour over the years of your marriage, they are not. Voicing your anger helps your divorce solicitor understand your priorities but at the same time they should focus on the practical and financial information that they need to advise you on the realistic prospects of your getting to keep the house.
If you have children it can be easy to assume that the children are going to stay with you and that as a result you will get to keep the house as the children need a roof over their heads. That is very logical. However, if the children will be spending time with their other parent they will also need to provide the children with somewhere to stay, even if they are only having overnight contact on two or three nights a week.
When most parents think about their children’s needs, they want their ex-husband or wife to be able to afford to buy a house in an area they are comfortable with their children spending time in. The affordability of creating two homes out of one asset pot depends on the value of the family home, the size of the mortgage , the other assets and, of course, both parent’s mortgage capacity.
Looking at mortgage capacity when you are separating or getting divorced isn’t as straightforward as you might think. Some people assume that they or their ex-partner will not have a mortgage capacity, or will only be able to borrow a very small amount because they are either not working or not earning a great deal. However, that isn’t necessarily the case. That is because some mortgage companies will take into account spousal maintenance and child support when assessing mortgage capacity. That can be a double edged sword as the spouse receiving the child support and spousal maintenance payments may have a greater mortgage capacity than originally thought, whereas the partner making the payments may have a reduced mortgage capacity because the mortgage company will not just take income into account but outgoings as well.
Don’t be surprised if your divorce solicitor asks you difficult questions and raises priorities. That is the job of a good divorce solicitor. All too often, there is total focus on the question, ‘‘Will I keep the house?’’ at the expense of other assets. A spouse’s pension or the family business may get overlooked if too much focus is placed on the family home. Whilst your priority may be to keep the house because, in the short term, you worry about more change in your life and the stress of a house move, your divorce solicitor should be guiding you on your options to make sure that you don’t end up with the house but without the income to maintain it or a pension to live on in your later years.
As frustrating as it is to not get an immediate answer to the question, ‘‘Will I get the house?’’, it is normally not possible at a first meeting because there are so many imponderables and unknowns that the question can't be answered accurately. Once all the financial and housing information is available, the answer then comes down to your priorities and negotiation. If negotiations fail then as part of the financial court process the family court has the power to order the sale or transfer of the family home. Most experienced divorce solicitors prefer to reach a negotiated settlement so you both end up with a financial deal that you can live with rather than one imposed on you by a judge who may, for example, not appreciate the importance of staying in the family home to you.
About Angelique Holm
Angelique Holm is a specialist London family law and divorce solicitor at OTS Solicitors. Angelique started her legal career as a family law paralegal, became a Fellow of the Chartered Institute of Legal Executives and completed her qualifications with enrolment as a solicitor.