Knock, Knock, Is Anybody [in the Marital] Home?

What happens to the home where you built a life when divorce is the only solution? In her latest blog, our Family Law Partner Joanne Beasy explains the intricacies related to selling or keeping a house during divorce proceedings.

When we talk to potential clients about ending their marriage by filing for divorce, we always talk about what happens to the “marital residence.” That’s lawyer slang for the home you lived in with your spouse, and maybe your children, through the good and the bad.

Who keeps it? Is it sold? If not sold, what happens to the equity? Here’s your least-favorite attorney answer to each of these questions: “It depends.”

If you and your spouse agree that one of you will keep the home, great. If you both want to keep it, then there’s a tug-of-war.

What if you want to keep it and your spouse wants to sell it? Well, if you have minor children, it’s common for the Court to keep the children in the home they know (at least some of the time), so it’s likely the court won’t order the home sold. But (and there’s always a “but”), what if you don’t have any minor children? What then?

The Tenth District Court of Appeals issued a decision on March 14, 2024 about a trial court’s authority when one spouse wants to keep the home, but the other one wants to sell. In Zinsmeister v. Zinsmeister, 2024-Ohio-938, the Court of Appeals upheld a trial court’s decision to sell the marital home before trial and over the objection of the husband, who was still living in the home and paying the expenses for it. The wife had moved out of the home and asked that the trial court order its sale because of the cost of the mortgage and the maintenance. The couple had no minor children.

In upholding the trial court’s decision, the Court of Appeals explained that the trial court had authority under Ohio’s statutes to order the sale of the home prior to trial, with the proceeds held in escrow. Of course, there were extenuating circumstances, such as husband’s inability to pay for the home expenses except through withdrawing money from his retirement account, but this decision is still a cautionary tale for all.

You can’t assume if you want to keep the home you get to keep the home. Some careful tactical and financial planning when it comes to your home may be in order, and we’re the right attorneys to help you with it.