What Happens to the Marital Home in a Nevada Divorce?

A spouse considering divorce often worries about what will happen to the marital home. Whether the spouses negotiate a settlement or the court decides the matter, specific factors can affect the outcome. Understanding the options and considerations can help spouses reach a workable resolution regarding the marital home and overall community property division in their case.

Nevada Community Property Laws

Among the key legal issues decided in a Nevada divorce is division of marital property. Nevada is a community property state. This means that property acquired during a marriage is the property of both spouses and is divided as part of a divorce. Spouses may agree to a specific division, subject to court review. If the parties cannot agree, the court will decide the division of marital property.

Overall division of community property is generally 50-50, although an unequal division may be appropriate in some circumstances. If the couple owns a home, the property is part of the division. There are multiple ways in which a marital home can be divided in a divorce. Whether by the parties or by the court, making the decision involves weighing all relevant factors, including the wishes of each spouse.

Options for Dividing a Marital Home

If the home was acquired during the marriage, the assumption is that it is community property subject to equal division. In some cases, however, one spouse may have owned the property before the marriage or contributed separate property (like an inheritance or gift) to the acquisition, which may need to be taken into account in making the division. 

In addition, if both spouses paid the mortgage and maintained the home, those contributions are also relevant to determining division. Dividing the home may also be affected by the terms of a prenuptial or postnuptial agreement.

Sale of the Marital Home / Division of Proceeds

The simplest solution is often to sell the home and divide the proceeds, taking into account any separate contributions and shared equity in the home. This approach is especially appropriate when neither spouse can afford to keep the home based on their income and credit scores, since keeping the home would require a spouse to take out a new mortgage. Whether a marital home must be sold will depend on the specific circumstances in each case.

Possession and Ownership in One Spouse / Buyout Agreement

One of the spouses may wish to retain possession of the home, such as a parent who has primary custody of children. There may also be other reasons why one spouse wishes to keep the home. The parties may reach an agreement in which one spouse stays in the home, while the other receives a fair portion of the current equity in the home.

The spouse who stays in the home may refinance and withdraw equity to compensate the other spouse, or the spouse who leaves may request other resources from the marital estate to balance out the value of the home. A spouse who stays in the home should refinance, to protect the other spouse from future liability.

Spouses Continue Joint Ownership / Deferred Sale

The parties may agree to continue joint ownership of the home for a specific period. This arrangement may be appropriate when there are minor children living in the home. The agreement often includes terms for payment of costs and maintenance, and addresses what happens when the property is eventually sold or the children can live independently.

Finding a Solution

No single solution is the best answer for every divorcing couple with a marital home as community property. Each spouse should consult a family law attorney regarding all aspects of the divorce, including community property division. An attorney can provide professional guidance on the viable and available options for addressing the marital home, and can also handle negotiations with the other party and representation before the court.

When the parties negotiate a settlement relating to community property, the court reviews the agreement. Generally, a judge approves terms negotiated by the parties, unless the terms are viewed by the court as unfair to one of the parties.

If the parties cannot reach a resolution, the court will ultimately decide division of community property. Often, a court will adopt the simplest solution of ordering sale of the home and division of the proceeds, taking into account any separate property issues in acquisition or during ownership. However, the court’s decision will always take into account the specific circumstances of the case, as presented by legal counsel for the parties. 

A spouse who is interested in keeping the marital home should endeavor to negotiate satisfactory terms, rather than hoping that a judge will order the desired solution.

Schedule a Free Consultation With an Experienced Clark County Divorce Attorney

If you are considering filing for divorce in Nevada, Las Vegas family law attorney Joseph Gersten can help you protect your interests and pursue cost-effective resolution of all issues, including the division of community property. Your initial consultation is always free-of-charge at The Gersten Law Firm. Call 702.857.8777 or complete our online form to schedule an appointment.