Who Gets The House?xxxxxxxxxx


At the Beginning of the Case

Under Nebraska law, one party cannot be removed from the home without a court hearing and a judge deciding who is to leave. If your spouse is telling you that you have to leave the house, be aware that under the law your spouse cannot make you leave without a court order. On the other hand, you cannot lawfully force your spouse to leave or change the locks, etc. without a court order either.

Temporary Hearing
A court order is obtained through a Temporary Hearing. After the case is started with the filing of the Petition (either for Dissolution of Marriage or Legal Separation), a Temporary Hearing will be scheduled within the next ten days to two weeks (depending on the Judge's schedule). At the hearing the Judge will decide temporary custody and temporary support and will usually decide who will have temporary possession of the house.

In most instances if a husband and wife are fighting over the house, the Judge will look at how much inconvenience will result for both parties. For example, if the mother is receiving temporary custody, it will probably be more disruptive to move the mother and the children, not to mention the fact that this could result in the children having to change schools, etc. The Court will sometimes also look at the possibility of leaving both parties in the house together, but if there has been physical violence or emotional abuse, the Court will generally not consider this. The Court will also look into who can afford the house, taking the payment of child support and alimony into consideration.

At the End of the Case
The outcome of this issue can vary greatly depending on the case. There are usually two competing sides in the issue of what happens to the house. One side wants to keep the house and the other side wants their equity out of the house, which usually means selling the house.

If the custodial parent is in the house, they usually want to keep it for the stability of being able to keep the children in their same neighborhood, in the same school district, with their same friends, etc., and to have one less disruption within the divorce. As stated previously, another important factor which the Court considers is who can afford the house.

Determining Equity
The first question is to determine the amount of equity in the house. This is done most easily if the home is going to be sold. Once the house is sold, after the mortgage balance is paid and costs of sale are paid, the remaining balance is the equity amount which will then be divided between the parties. If the home is not going to be sold, but rather one party will be keeping the house, the equity is determined by computing the current value of the home minus the mortgage balance (or balances if there is a second mortgage).

The Court will also sometimes deduct a real estate commission (generally 7% of the value of the house); this is sometimes done even in situations where the house will not be sold immediately because the Court is aware that down the road when that party goes to sell the house a real estate commission will most likely be paid. An example is as follows:

 

   Current Value of Home          $100,000
   Mortgage Current Balance       $ 65,000
   7% Real Estate Commission    - $  7,000
                                  --------
                                  $ 28,000 ÷ by 2 = $14,000

In this example, the equity interest of each party is determined to be $14,000.

Other Arrangements
In many situations, the Court prefers to keep the custodial parent and the children in the family home, to allow for less disruption in the children's lives. In this situation, if there are other cash assets to compensate the non-custodial parent for their equity, the Court will very often award those assets to the non-custodial parent, and the house to the custodial parent, maintaining a 50/50 division.

If there are not sufficient cash assets to compensate the non-custodial parent for their equity, the Court will very often make a determination of the amount of their one-half equity interest (in the example above $14,000) and then order that this amount will be paid to the other spouse in the event the spouse in the house sells the home, vacates the home, re-marries, or the when the youngest child reaches the age of majority (age 19). In some instances, the Court will also order that interest be paid on this amount until it is paid to the other spouse.

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