Can I Keep the House in a Divorce Settlement in Tennessee?

Divorce isn’t just about splitting possessions—it’s about untangling lives. And when the marital home is part of the equation, emotions run high. Your home isn’t just a house; it’s where you built your life, raised your kids, and created memories. But as much as you may want to keep the house, the legal and financial reality of property division in Tennessee can be complicated.

So, can you keep your home in a divorce? Let’s break it down in a way that makes sense.

Marital vs. Separate Property in Tennessee

Before we dive into whether you can keep the family home, it’s important to understand how Tennessee classifies property in a divorce.

What Is Considered Marital Property?

Under Tennessee Code Annotated § 36-4-121, marital property includes assets acquired during the marriage—meaning that if you and your spouse bought the house together, it’s marital property regardless of whose name is on the title. If the house was purchased using joint funds or both spouses contributed to the mortgage, it will most likely be subject to equitable distribution in court.

What Is Separate Property?

Separate property, on the other hand, includes assets acquired before the marriage, inheritances, or gifts received individually. So if you bought the house before tying the knot and never added your spouse’s name to the title, you might have a stronger claim to keep it—unless, of course, marital funds were used to pay the mortgage or make improvements.

Factors That Determine Who Gets the House in TN

Tennessee follows equitable distribution, meaning property is divided fairly—not necessarily 50/50. Several factors influence whether one spouse gets to keep the home, including:

1. Who Gets Custody of the Kids?

If children are involved, the custodial parent often has a better chance of staying in the home. Courts aim to maintain stability for children, meaning they may prioritize letting them stay in the same school district and community.

Additionally, if child support is part of the equation, it could impact whether a spouse can afford to stay in the home post-divorce. The court will consider the financial needs of the custodial parent, including whether they have enough financial support to maintain the home.

2. Can You Afford to Keep the Home?

A house isn’t just about ownership—it comes with mortgage payments, property taxes, maintenance, and insurance. The court will look at whether the spouse wanting to keep the home can realistically afford it. If the numbers don’t add up, the house may have to be sold.

Some key financial considerations include:

• Mortgage payments – Can you refinance it under your name?
• Property taxes – Can you handle tax increases over time?
• Repairs and maintenance – Are you financially prepared for upkeep?
• Homeowners’ insurance – Will you be able to afford coverage on your own?

If you can’t afford to keep the home on your own, selling may be the best option.

3. Can You Buy Out Your Spouse’s Share?

If both spouses have equity in the house, the one who wants to keep it may need to buy out the other’s share. There are a few ways to do this:

• Cash Buyout: You pay your spouse their portion of the home’s value upfront.
• Trading Assets: You exchange other marital assets (retirement funds, investments, vehicles) to balance the division.
• Refinancing the Mortgage: You take out a new loan in your name alone to remove your spouse’s financial obligation.

Refinancing can be tricky—lenders will consider your income, credit score, and ability to pay on your own. If you don’t qualify for a mortgage solo, selling may be the only viable option.

4. Does Debt Play a Role?

Dividing assets also means dividing marital debt, which includes mortgages, loans, and credit cards acquired during the marriage. If one party takes on more of the debt load in exchange for keeping the house, the court will factor that into the settlement. However, this could be a risky move if the financial burden becomes overwhelming.

What If You Want to Remove Your Spouse From the Mortgage?

Let’s say you get the house—what happens to the mortgage? Simply signing a quitclaim deed isn’t enough; your ex-spouse’s name remains on the loan unless you refinance. That means if you miss payments, it could still impact their credit.

Steps to remove your spouse from the mortgage:

• Refinance: Apply for a new mortgage under your name only.
• Loan Assumption: Some lenders allow you to assume the existing loan if you qualify.
• Sell the House: If refinancing isn’t an option, selling might be necessary.

What If One Spouse Moves Out During the Divorce?

Moving out of the family home during divorce proceedings might seem like a natural step to reduce tension, but it requires careful consideration. While leaving doesn’t mean you’ve given up your rights to the property, it can affect your divorce case in important ways.

Courts often look to maintain the living arrangements that develop during separation, so if you move out and your spouse remains with the children, this pattern might influence the final custody decisions. Even after moving out, you’re still responsible for your share of the mortgage, utilities, and household expenses if your name is on these accounts – meaning you could end up paying for two households.

Instead of simply moving out, consider filing for legal separation first. This provides a court-ordered framework for living apart while protecting both parties’ rights regarding property access, financial responsibilities, and temporary custody arrangements.

If you decide moving out is necessary, consult with our experienced family law team first. We can help protect your interests by documenting the home’s condition, creating written agreements about temporary arrangements, and establishing clear boundaries for accessing the home after you leave.

Alternatives If Keeping the Home Isn’t Feasible

Sometimes, keeping the house just isn’t possible. Here are some alternatives:

Selling the Home and Splitting the Proceeds

This is often the simplest solution—sell the house, split the equity, and start fresh. Courts favor this option if neither spouse can afford the home alone.

Co-Ownership After Divorce

Some couples agree to co-own the home temporarily, especially when kids are involved. One spouse stays in the house while the other retains financial interest, with plans to sell at a later date.

Deferred Sale Order

A deferred sale order allows the custodial parent to stay in the home for a set period before selling, giving the children time to adjust. This can be a temporary solution if finances allow.

How a Divorce Attorney Can Help

Dividing a home in a divorce is more than just deciding who gets the keys. It involves legal rights, financial strategy, and future planning. A skilled divorce attorney can help you:

• Understand your rights and legal options.
• Negotiate a fair settlement that protects your interests.
• Explore buyout, refinancing, or alternative solutions.
• Ensure all financial and legal obligations are handled properly.

What’s the Best Move for You?

Deciding what happens to the family home after a divorce isn’t just about money—it’s about your future, your security, and your peace of mind. The court looks at several factors, like who has custody of the kids, financial stability, and how debts are divided, to determine who gets to keep the house.

If you’re hoping to stay, you’ll need to show that you can handle the mortgage, taxes, and upkeep on your own. If that’s not possible, selling the home and moving forward may be the best option.

Feeling overwhelmed and unsure of your next steps? The Law Office of Sam Byrd understands how emotional and complex this process can be. Our compassionate and experienced property division attorneys are here to help you navigate the property division process, ensuring you make the best decision for your future. Schedule a consultation today, and let’s work together to protect what matters most to you.