Question: After 23 years and four children, my wife and I are headed for a divorce. All but one of our children are finished with college and working. The youngest will graduate in a year. My wife and I are both employed, and each of us has a pension balance that just about offset the other’s. The sticking point is our home, which is titled in both our names, is almost paid for, and has equity of nearly $125,000. My wife wants to remain in the home because the mortgage payment is very low, while I want my equity. Do you have any suggestions?

Question: After 20 years of marriage, my husband left me and our three children for another woman. We bought our home before our first child was born, and have raised all of our children there. During the marriage, I stayed home and raised our children. He now wants me to sell the house, divide up the cash, and then go to work – even though I am 41 and have never worked outside the home. He refuses to pay me alimony. I want to stay in the house until our youngest gets out of high school in 11 years. Our home is pretty cheap to operate. Where are my children and I supposed to live if we must move?

Answer: Seeing the same question from different perspectives brings into focus the difficulty judges have in making equitable decisions in matrimonial cases. While the answers to both questions lie within the discretion of the judge based on the facts of each case, the factors considered and rationale used in reaching a conclusion are the same.

On one hand, if small children remain in the residence and the custodial parent shows compelling reasons, the court may not require that the residence be sold immediately. On the other hand, if the equity is substantial, the court must weigh the value of tying up one spouse’s funds for years, and allowing continued use of the residence may not be reasonable.

When questions like these arise, the judge will hear the evidence and try to balance the increased costs and hardships of leaving the home against the financial burden imposed on the non-occupying spouse due to his/her inability to access his/her equity from sale of the home.

Custodial parents generally won’t be granted use of a marital residence unless compelling reasons exist. These may include: 1) whether the home is needed to provide for minor children; 2) whether the spouse who wants possession has a handicap or special need; 3) amount of equity that will be withheld from the spouse who doesn’t live there; 4) how long the equity will be tied up and the likelihood of missing market opportunities; 5) total amount of support to be provided; 6) whether proper alternate housing can be reasonably obtained by the occupying spouse; 7) a comparison of the cost and inconvenience imposed on the occupying spouse who must move out against the detriment imposed on the non-occupying spouse whose equity is tied up.

In some instances, other assets – like retirement funds and bank accounts – can be traded for home equity between spouses. Or, the occupying spouse may be able to secure favorable financing from a bank or a loan from parents or relatives. There are many ways to make a deal without litigating, so search for them before your problem reaches a crisis stage.