When couples divorce, there are many issues that must be worked out. One of the questions we get asked the most is, “Does the house have to be sold?” The answer is that it depends on the relationship between the spouses and the distribution of assets in each case.

Distribution of Assets

New Jersey is an equitable distribution state. Equitable distribution allows marital property to be fairly – but not necessarily equally – divided between the spouses. Courts will consider several factors, rather than automatically splitting everything 50-50.

New Jersey Courts will first identify which assets are subject to distribution, such as the marital home and other property acquired by either of the spouses during the marriage.

The court will assign a value to the marital property, and when determining the distribution of assets, will consider the duration of the marriage, the age and health of the parties, the income or property each party brought to the marriage, the economic circumstances of each party, and any arrangements made between the parties.

Relationship Between the Spouses

One spouse cannot make the other move out of the marital home while the divorce is pending. Both spouses have a right to occupy the home, even if one spouse owns the home separately. One exception to this rule is if one of the spouses has a history of domestic violence or patterns of abusive behavior, in which case the judge may order that party to stay away from the marital home as part of a restraining order.

One spouse may also not sell the house without the consent of the other spouse, without asking the court’s permission. To sell a home pendente lite, or while the divorce is pending, you must present compelling financial reasons, such as the avoidance of foreclosure or the protection of marital assets.

If the parties can agree on how the marital property is to be distributed in a prenuptial agreement, the court will honor it, alleviating the need for mediation or lengthy and contentious court proceedings.

In the absence of such an agreement, keep in mind that courts tend to award possession of the home to the party that continued to live there, especially if they did so with minor children.

High Asset Divorce

High asset divorces often involve several residences and businesses that may be subject to equitable distribution, depending on the date of the marriage, the date the property was purchased, and the amount and sources of down payments.

If the parties cannot agree on the distribution of assets, the court may order the sale of the marital home and division of the proceeds. Or, the court may grant one spouse the right to live in the home and order the other to buy out his or her interest in the home.