Who Gets the House in a Nevada Divorce?
Who gets the house in a Nevada divorce “mostly” depends on whether it’s separate or community property. Nevada is a community property state. This means all property (including a home) acquired during the marriage is strongly presumed to be community property.
Whose name is on the deed or mortgage is not confirmation of what is or isn’t community property. A common misconception is whose name is on the deed, the car title, or the bank account determines who owns the asset if a divorce were to happen. This is incorrect because all property acquired during a marriage, regardless of titling, is community property.
Even wages or tips earned during a marriage are community property. We explain below how wages earned during the marriage and used to pay the mortgage gives both spouses an ownership interest in the home.
Who gets to live in the home during the divorce is a much different question than who gets the home at the end of the divorce. For answers to who gets to live in the house read our article on Can I Evict My Spouse. This article focuses on who gets the house after the divorce is finished.
Which Spouse Gets The Home?
If a home title and mortgage is in the name of one spouse, the judge will likely award the home to that spouse. This is not an absolute rule of law, but is the typical outcome because judges cannot force mortgage lenders to change who owes the mortgage.
For example, the husband’s name is the only name on the title and the mortgage. Changing the title to the wife’s name is something a judge can order. But changing the mortgage to the wife’s name is not. Because a judge cannot force a mortgage company to change who owes the loan. Therefore, the judge is likely to award the home to the husband. The wife may still be entitled to money from the home, but she will not be given the actual home.
If a home title and mortgage is in the name of both spouses, the outcome will depend on who can remove the other spouse’s name from the mortgage. Again, the judge cannot force a mortgage company to take a borrower’s name off the mortgage. Likewise, a judge cannot force a new mortgage company to lend money to a spouse for the mortgage. The judge will give each spouse an opportunity to buy out the other spouse’s interest in the home and to remove the other spouse’s name from the mortgage.
For example, if the husband can get a new mortgage (or obtain money from his family or his 401K) that compensates the wife’s interest and removes her name from the mortgage, then the judge will give the home to the husband. How much the husband has to pay the wife, depends on how much of the equity in the home is community property.
Can a Judge Force the Sale of the House?
Yes a Judge Force the Sale of the House. If neither spouse wants the house, or cannot afford to carry the mortgage alone, the court can order it to be sold. This authority to sell the home flows from NRS § 125.150(1)(b), which requires the court to make an equal disposition of community property “to the extent practicable.”
A common approach the judge orders is for one spouse to present the other spouse three realtors. The other spouse chooses one of the three to be the realtor in charge of selling the home. The realtor is a “neutral” who can be the tiebreaker on listing price, pre-sale improvements, and scheduling showings. This keeps the sale moving without either spouse having veto power over every decision.
What Makes a House Separate Property or Community Property?
A home purchased before the marriage, and still only titled in the spouse who purchased the home, is considered the separate property of that spouse. A home purchased during the marriage, regardless of whose name is on the deed, is considered community property of both spouses.
- Separate property, generally: purchased before marriage, titled in one spouse’s name, and clear of mortgage payments made with community funds
- Community property, generally: purchased after the marriage began, both names on title, and/or payments made from a joint or community bank account
A home considered community property will be divided evenly. A home considered separate property might be completely separate property or might be partially community property. Community money touching the house at any point (a down payment, mortgage payments, even improvements) can convert a separate property home into community property. This is usually a percentage question which is answered under the Malmquist framework.
What If I Owned the House Before Marriage, But We Paid the Mortgage With Community Funds?
In this situation you have a separate property home that the community (a husband and wife are called a community) have a financial interest in. Then you likely have a separate property claim to the home’s premarital value.
Nevada courts resolve this split-interest problem using the framework from Malmquist v. Malmquist, which calculates how much of the home’s equity is separate, and how much is community. Nevada uses a Malmquist Calculator to determine the amount of separate property equity and the amount of community property equity.
What If We Are Not Married?
We have mentioned community property is created during a marriage. What if you are not married and a home is purchased. There is a trend of unmarried couples purchasing a home. Nevada has issued an opinion on this situation. It’s called “Community Property by Analogy”. This doctrine allows a judge to divide property between unmarried couples who pooled their finances and built a life together as though married.
Because of this law a court can divide a home’s equity between unmarried partners. Whether a judge will determine a home is community property by analogy depends on a list of factors; title, financial contributions, how long the relationship lasted, do they have children.
If a judge determines the home is completely or partially community property, then the outcome of the home is treated no different than if the couple were married. A Nevada family court judge can (and will) Divide a Home Owned by an Unmarried Couple.
Does the Spouse Who Keeps the House Have to Pay the Other Spouse?
Yes the spouse who keeps the house have to pay the other spouse, if the house is community property or has a community interest. Absent a “compelling reason”, Nevada law requires an equal division of community property. If one spouse keeps the house instead of it being sold and the proceeds evenly divided, the other spouse needs to be compensated.
The most common approach is a buyout. The court, or the spouses by agreement, places a value on the home, calculate the community property equity, and the spouse keeping the house pays the other spouse half of that equity. Either as a lump sum, through refinancing, or by offsetting it against other assets in the overall division. If a spouse can’t refinance or come up with the buyout amount, that’s often what forces a sale instead.
What Happens If the Mortgage Is Underwater?
What does a judge do if a home is worth less than what’s owed. If the home is underwater (the mortgage is more than the value) the judge is dividing a debt, not an asset. Selling the home is not an option unless the mortgage lender allows a short sell. The judge will be looking for which spouse is willing to keep paying the mortgage on the home while they live in the home. When a spouse takes on a debt like this, there is no equity to pay the other spouse.
Does Temporary Possession Mean I’ll Get the House Later?
No, temporary possession doesn’t mean you’ll get the house later, and this is one of the most common misunderstandings in these cases. An order from a Motion for Exclusive Possession only decides who lives in the house while the divorce is pending. It’s a temporary order attempting to be a practical order, not a ruling on ownership.
The judge who grants it isn’t declaring the house separate property or awarding it to you at the end of the case. That determination happens separately, usually at trial or through a settlement, and based on the community property and separate property analysis above.
It’s common, and often persuasive, for a spouse to point to their strong ownership claim as one reason to grant temporary possession, but the two questions are legally distinct, and a judge can grant temporary possession to one spouse and still ultimately award the house, or its value, differently at the end.
Does “Best Interest of the Child” Help Me Get the House Later?
No, the judge cannot override the principles of separate property and community property because it would be best if the children continue to live in the home they are living in. Courts are often sympathetic to keeping kids in a familiar home and school district while the case is pending. This is called a Temporary Order. But a judge would be abusing their power (called abuse of discretion) if they ignored a spouse’s economic interest in a home to keep the children in the home.
Do We Have to Split the Furniture Too?
Personal property gets divided along with everything else. It is typically divided one of two ways: a value-based split (appraising items and equalizing the value each spouse receives) or the far more common “A/B list” approach, where each spouse takes turns picking items until the list is exhausted.
If you’re worried about items disappearing or being accused of removing something you didn’t take, photograph or video the contents of the home before you move out, or as early in the process as possible. This is a simple way to verify what personal property existed.
This article explains what happens to the home at the end of the divorce. For information on who can have possession of the home during the divorce, read Can I Evict My Spouse in Nevada. And if you are looking for how these rules and legal principles play out in real life, read “It’s My House. Get Out!” How One Las Vegas Couple Actually Resolved It.
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