Who gets the house, if one of us had an affair?

After 1.5 years trying to reconcile after my wife’s 5 year affair, we are ending our 20-year marriage. Despite two teenage kids and her being a stay-at-home mom, she had the affair, so I think she should be the one to go. She disagrees. Who’s right?

Answer if there’s fault on both sides:

If she had an affair, but you committed your “fair share” of marital fault too (such as beating your wife or being otherwise extremely cruel during the marriage, if you had an affair of your own, or you’re a drunk or drug addict, etc.) then (although this is not a pure legal principle) you and she could be said to be “even”; there’s plenty of mutual fault to go around. She had an affair for 5 years, you’ve been a drunk for X years; you get the idea. Two wrongs don’t make a right, but it would be hypocritical for one spouse to claim aggrieved status when there’s fault on both sides. But read on for the analysis of who has to move out—that’s at the end of this post.

Answer if you’re the innocent, faultless party:

First, if she was willing to cheat on you behind your back, she probably sees no downside to cheating in court. So unless your wife admits in court to the affair, there’s a good chance she’ll deny the affair. Why not? What does she have to lose (keep reading to find out whether the courts care about spouses who lie about things like an affair)? Then it becomes your burden to prove, not her burden to disprove. So unless you have the 8 x 10 glossies, the hotel guest register, the security camera footage, the pornographic e-mail/text messages, and the like, the affair may never be established as a fact in your divorce proceedings.

Second, even if you are faultless, your wife (and her attorney) will, once the divorce action is filed, likely concoct a fake story or stories ascribing fault to you anyway, even if there’s no proof (“he was never home and all he did when he was home is sleep or watch TV!” or “he raped me for 15 years and I was too embarrassed and scared to do anything about it.”) You’d be surprised how effective such a move can be. She’ll want to counteract the adverse effects of her affair by casting you in an unflattering light, and in today’s culture people believe a woman’s tales of marital woe far more readily than a man’s. And even if she were to get caught in her lies, the courts rarely do anything to penalize them. Why I don’t know; all that does is further erode our faith in the legal system. But I digress.

Third, even if your wife concedes she’s at fault and that you are innocent of any marital fault, the question of who stays in the house usually does not turn on the question of fault. It can, but it usually doesn’t. And what is the most crucial determining factor?

Bottom line:

The question of who should be the one to move out is a question over which reasonable minds can differ, but (and I know you’re not going to like this) it’s primarily a question of “who’s better equipped/able to move out? You said she’s a stay at home mom. And she’s been that way for at least 15 years or so, I’d bet. That likely means that you are a traditional husband/father primary breadwinner type who worked or works outside the home and makes most or all of the family’s money. You don’t spend as much time in the home as your wife does. You likely aren’t the one responsible for the housecleaning, laundry, cooking, child care, etc. Who’s better able to get an apartment and move out?: the unemployed stay at home mother, or you? And there’s your answer.

No good deed goes unpunished.

But remember this: if the house was acquired by you and your wife as joint owners during the marriage and has equity in it (i.e., the value of the house exceeds the amount of the mortgage encumbering it), then it is a marital asset (if not, then this paragraph won’t apply). The house is half yours, half hers. It’s probably your and your wife’s biggest asset. And after divorce, you and she won’t be living together. You’ll need money to pay for a new residence, and the equity in the house is the most obvious, easiest source. Thus “who keeps the house?” idea is, frankly, a silly question unless you and your wife have other assets that equal or exceed the value of the house.

Moreover, if the house is encumbered by a mortgage, it’ll be hard, perhaps impossible, for you to qualify for a loan for a new house for you to live in post-divorce. And what about what happens if your wife “keeps the house,” but then doesn’t pay the mortgage that has your name on it too? Your credit’s ruined. The house could be lost to foreclosure. That’s not fair to you (and it wouldn’t be fair to your wife, if the shoe were on the other foot).

Neither of you should “get the house” unless A) there are other marital assets that could be awarded to one of you to offset the value of the house or perhaps B) one of you can refinance the indebtedness encumbering the house into his/her name only and then add additional money to the newly refinanced loan to “buy out” the other spouse’s half-share of the equity in the house.

If there are no other marital assets that could be awarded to one of you to offset the value of the house, and because you cannot cut the house in half and give each of you a slice, then the fair thing to do is sell the house and award each of you half of the sales proceeds. You may end up living in a bachelor pad during the pendency of the divorce action to give your wife (and kids) time to make prepare for the sale of the house, but if you and your wife cannot agree upon who gets to keep the house, you may want to ask the court to order the house sold, the equity divided between you and your wife.

Here I must mention that if your children are little some courts believe that children shouldn’t be displaced from their house, their neighborhood, friends, etc. due to their mom and dad divorcing. Hey, it really would be good if somehow Mom and Dad could divide the marital assets and dispose of any loan liability issues without the house having to be sold and the parents and kids having to move, but the idea that moving is irreparably or inexcusably traumatic to a child is nonsense (just ask an Army brat or the child of any parent whose job requires frequent moves). The idea that children must remain in one home throughout childhood is not a legal mandate, not even close. If your judge tries to feed you the “I am troubled by what selling the house might do to the children,” fire back with points like: what proof does anyone have that moving is any worse than staying?; how do we know a move wouldn’t be better than staying?; the fact that a move might possibly be good or bad for the children is proof of nothing; even if we knew the move would be hard on the kids, that does not justify risking/damaging the other parent’s credit and denying him/her access to his/her home equity for years.

Utah Family Law, LC | | 801-466-9277

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