Advantage Family Law

The decision of “should we/should we not” get a divorce is not easy. It is a process that involves asking yourself a lot of questions about the future. A common question people ask themselves is “If we get a divorce, who will get the house?”

Many divorcing couples own a home together. There are a lot of emotions and memories attached to the home: A child’s first steps, family dinners, family movie nights, the list goes on.

Most often, the question of “who gets the house” arises from another important question: “What is best for the kids?” Children who grew up in the house likely attend schools nearby.  His/her friends may live in the neighborhood.

50/50 Roadblock

One major roadblock to one parent owning the house is this: the law (in most cases) says the house is a 50/50 split after a divorce. This means that each spouse is entitled to 50% of the value of the home.

In cases such as this, there are options to avoid this 50/50 roadblock.   As part of the divorce process, most couples can negotiate with each other and agree how property and other assets will be split between them. This can be seen from the following example:

• Mr. and Mrs. Lahey own a home worth $1 million dollars.
• They also have investments in stocks worth $1 million dollars.
• Mrs. Lahey wants to stay in the home with the kids. Her aging mom also lives with them. The children attend school near the house.
• Mr. Lahey is OK with moving out, but he does not want to lose out on the money tied up in the house.
• Solution: they can agree that Mr. Lahey gets the $1 million dollars in stock investments, and in turn, Mrs. Lahey becomes sole owner of the family home that is also worth $1 million dollars.

If spouses can’t agree, a judge can step in

If a couple cannot agree on who stays in the house, there are times when an Alberta judge will step in and make this decision for them.  Sometimes, a judge will order the house to be sold, and the proceeds split between the couple.

However, in other cases, a judge can issue something called an “exclusive possession order”.  This is a legal directive that says “Who lives in the house, and who does not”.

The following are circumstances where a judge might order that one spouse can live in the home:

1. There is an economic imbalance – example: a stay-at-home mom has no income and dad earns $300,000 per year.

1. The children need the home for stability – Here, educational needs, health or extra-curricular activities may require a child to continue living in the home with one parent.

When deciding what to do with the house, it is always best if a couple can agree on something fair for each of them.  However, when that is not possible, one spouse may have to go to Court and ask a judge for help.

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