Every divorce can be divided into two categories – mediated or court settlement. If a couple are able to agree as to who gets what after the divorce, that’s fine. If they can’t agree, the dispute will go to court and the judge has to decide.

Now there are several points which arise from this. If the matter goes to court and the judge has to decide, it’s highly likely that each spouse will hire a lawyer so as to maximize their chances of success. Hiring a lawyer can cost a lot of money. If you had mediated the issue and settled it between yourselves, you could have saved a lot of money. And if you do contest the divorce, not only may it cost you big bucks, you may also lose in the end anyway. This is something to think about.

But who should or does get the house when it is jointly-owned? If the judge has to decide here are some facts he or she will take into consideration.

Is the home a long-standing family home? If one spouse’s ancestors owned and lived in the home for several generations that would certainly count in favor of that particular spouse.

If there are children involved and they have lived in the house for some time, it would be doubly traumatic for the kids to see their family broken up and also to leave their refuge or much-loved residence. Of course the child or children may not like the family home because it reminds them of the fights their parents had for perhaps many years. Every divorce is unique and every judge will make a decision based on the facts of the case.

One major problem in a divorce is if the house is awarded to the partner who is not granted custody of the children. The kids may love the house but cannot live there because the parent who has custody in no longer living there.

Assets can sometimes be used to negotiate an outcome between the spouses. One spouse may agree to relinquish their claim to the family home in exchange for another asset or for better access rights to the children.

The family home is almost always the asset with the greatest value and being granted this asset is vitally important. But the wealth of each partner is not necessarily a factor in who gets the home. In fact in some divorces the partner with the least wealth and the least opportunity of creating wealth is given the family home. In considering your divorce, do not assume anything and be prepared for the judge to rule in whichever way they think is best for the couple and any children.

It cannot be stressed enough that agreeing to a settlement between yourselves is far better than going to court and having a judge make the decisions. Even if you are not on speaking terms with your spouse, it is possible to reach an agreement on who gets what by using a mediator or having someone else represent you at settlement meetings.