Who Gets the House in a Divorce with Children?

Many couples find that the family home is more than just an asset. It can bring a sense of comfort to children, hold cherished memories, and represent a substantial financial investment.

We at Jackman Law Firm understand how emotional this issue can be. Since we founded our practice in 2014, we’ve been helping families protect what matters most during divorce, and this article explains how courts in Colorado approach the division of a house when kids are involved.

Marital Property Laws in Colorado

Colorado uses equitable distribution to divide property rather than a pure 50/50 split. This means the division of assets is based on fairness, not just an exact half. If you bought a house or other property during your marriage, that asset is typically considered marital property.

Items acquired before the wedding or received as gifts or inheritances often count as separate property. Because fairness guides the court’s decisions, the final outcome may not be an even split but rather one that the judge sees as fair under the circumstances. Understanding this basic approach helps set the stage for how the house might be treated in a divorce.

• Marital property: Assets purchased or obtained during the marriage.
• Separate property: Mostly belongings owned prior to marriage or received as a gift or through inheritance.
• Equitable distribution: Division of property in a manner that seems fair, not always equal.

Determining Who Gets the House: Factors Considered by Colorado Courts

Courts look at many details when deciding how to handle the family home. They consider ownership history, individual finances, and the well-being of any children. Below are some key factors that often come into play.

Contribution to the Property

Courts examine both the financial and non-financial efforts each spouse has made. One person might have funded the down payment or handled the mortgage payments. The other might have been responsible for home upkeep, helping keep the property in good shape. These efforts can affect how the house is ultimately awarded.

Custodial Arrangements and the Best Interests of the Child

The custodial parent often remains in the marital home to provide stability for the children. Colorado courts are guided by what they believe fosters continuity for young ones. C.R.S. § 14-10-113(1)(c) further underscores the importance of promoting the children’s well-being, so housing arrangements that support the kids’ routine are favored.

Financial Circumstances of Each Spouse

The ability to manage mortgage payments, taxes, and maintenance expenses also shapes who gets the house. A spouse with more resources or someone better able to refinance the mortgage might be more likely to keep the property. Judges aim to ensure that whoever receives the house can handle its financial responsibilities.

Prenuptial and Postnuptial Agreements

An existing prenuptial or postnuptial agreement can override certain default rules. If the agreement is valid and covers the house, that portion of the contract usually guides the court’s decision. These documents can simplify the question of who retains the property, so long as they were properly executed.

Changes in Separate Property Value

Sometimes a spouse acquires a house before marriage, yet its value or equity grows during the union. That added value could be considered marital property. Judges consider whether contributions during the marriage (time, repairs, finances) added to the property’s worth and then factor that into the broader property division.

Options for Dividing the House in a Colorado Divorce

Splitting a home can be handled through various methods, depending on each family’s preferences and situation. Some couples settle these matters through negotiation while others rely on the court for the final decision. Below are the primary ways the house can be divided.

Selling the House and Dividing the Proceeds

One straightforward approach is selling the home and splitting the net proceeds fairly. This lets both spouses start fresh, usually avoiding the complexities linked to buyouts or co-ownership. Courts often prefer this if no one can afford the mortgage alone or if neither person wishes to keep the house.

One Spouse Buys Out the Other

If one spouse wants to stay in the home, a buyout may be an option. Refinancing is common: the spouse who stays obtains a new loan in their name, pays out a portion of the equity to the other spouse, and assumes full ownership. This path works well when one individual can manage a new loan and the associated costs.

Co-Ownership

Some ex-partners decide to co-own the house temporarily, especially if they want to keep children in familiar surroundings. This choice can be complicated because it requires mutual trust and clarity on how to handle repairs, bills, and potential disputes. While co-ownership can give kids stability, it also demands good communication.

Can I Stay in the House During the Divorce Process?

Unless a court order directs a spouse to leave, both individuals typically have the right to remain in the marital home. Still, you should consider the financial and custody implications if you choose to move out voluntarily. In some cases, relocating before a final custody or financial plan is established can shape how the court views parenting time and temporary support arrangements.

If staying together causes tension or conflict, you may request a temporary orders hearing to help define who stays in the house during the divorce. Courts often weigh factors such as children’s routines or personal safety when deciding on interim housing concerns.

Separate Property vs. Marital Property: How It Affects the House

When it comes to real estate, classification matters. If you bought your house before tying the knot, or if it was gifted, that initial value might remain separate property. However, a home’s total increase in equity during the marriage could be treated as marital property. That means the appreciated portion can be divided between you and your spouse.

Commingling can also occur. For example, if marital funds were put into a previously separate home, that house might shift (at least partly) to marital property. Courts look at whether shared efforts or funds helped raise the home’s worth. A spouse who hopes to keep a premarital property separate should maintain records showing how it was financed and managed over time.

Strategies for Keeping the House in a Divorce

Some parents place great importance on staying in the family home. If that includes you, it’s good to have a clear plan. Below are steps you might take to improve your chances of retaining the house:

1. Arrange a professional appraisal to estimate market value with accurate data.
2. Subtract outstanding mortgage balances or home equity loans to identify how much equity exists.
3. Negotiate with your spouse by offering assets in exchange for their share of equity.
4. Refinance the mortgage in your name if you aim to remove the other spouse from the loan.
5. Budget for all costs, such as property taxes, upkeep, and homeowner’s insurance.
6. Consult a qualified professional to finalize revised deeds and titles reflecting sole ownership.

Securing the house can be more manageable when preparing for all mortgage-related steps and any equity payouts to your spouse. A solid understanding of these measures can help you protect what you value most.

Below is a short table showing how different property topics might be sorted as separate or marital in Colorado:

Need Assistance with Your Colorado Divorce? Contact Jackman Law Firm Today

Our team has been committed to family law since we opened in 2014, and we’re here to help you explore every option in your divorce proceedings. If you think shared parenting is a priority or if you’re working to secure fair treatment, we’re ready to support you. Call us at 234-555-5555 or visit our Contact Us page to schedule a consultation. We believe fathers should have a voice and fair outcomes, and we’re prepared to protect your interests every step of the way.