The economic uncertainty that comes with the end of a marriage is one of the biggest challenges associated with divorce. Some couples can predict the likely outcome of property division proceedings because they already have an agreement with one another about how they will share their assets. Many other couples who do not have a prenuptial or postnuptial agreement have to trust that the courts will appropriately handle their resources when they divorce if they’re not able to reach mutually-agreeable settlement terms outside of court. Louisiana is a community property state, and state statutes generally require a 50/50 division of the net marital estate during a divorce.
The home is an asset that represents a large portion of the value of a typical marital estate, but divorcing couples can’t share that home in most scenarios. Who keeps the marital home, and what does that usually mean for the division of other assets?
Judges have a lot of discretion during divorce
If people do not already have it agreement for dividing their assets, they have the option of settling with one another. Collaborative negotiations or even divorce mediation could help people decide on their own what should happen with their home and other valuable assets. Those who cannot resolve their property division disagreements outside of court will need to wait for a judge to hear their case. A Louisiana family law judge potentially has the authority either to award the house to either spouse or to order its sale in certain situations.
One spouse may have a better chance of retaining the home if they can show that they had a pre-existing connection to it before their marriage, possibly because they inherited it. Someone intending to be the primary caregiver for the couple’s children could also have a stronger claim to the retention of the marital home. Even then, a judge will consider factors including the allocation of other assets and the ability of each spouse to pay for and maintain the home when deciding who should keep it. Simply put, if the matter goes to family court, there is no guarantee regarding who will keep the home and who will only receive some of its equity in the form of other assets or financial compensation when their spouse refinances.
Understanding the uncertainty involved in property division litigation may inspire some people to take control of the process by seeking legal guidance and/or opting for a cooperative approach as they prepare for divorce in Louisiana.