Key Takeaways

The Family Home Does Not Automatically Have to Be Sold. In a Maine divorce, the spouses may sell the home, or the court may award it to one spouse or allow one spouse to live there for a period of time. Maine law expressly permits the court to consider the desirability of awarding the family home, or the right to live there for a reasonable period, to the spouse with whom the children reside.

Maine Uses Equitable Distribution. Under 19-A M.R.S. § 953, the court divides marital property in proportions it considers just after considering all relevant factors. That does not necessarily mean an equal 50/50 division.

Keeping the House Requires a Workable Financial Plan. A spouse who wants to keep the home must consider the mortgage, taxes, insurance, maintenance, and how to address the other spouse’s interest in the equity.

Ownership and Mortgage Liability Are Different. A divorce judgment can transfer ownership of a home, but removing a spouse from mortgage liability ordinarily requires the lender’s cooperation, often through refinancing.

Selling or Refinancing During the Divorce May Be Restricted. Under 19-A M.R.S. § 903, Maine’s preliminary injunction generally restricts either spouse from selling, transferring, or encumbering property while the divorce is pending unless the parties agree in writing, the court orders otherwise, or a statutory exception applies.

Accurate Valuation Matters. Fair market value, mortgage balances, liens, and any marital and nonmarital interests can materially affect how the court treats the home. If the property is sold, appropriate transaction costs may also affect the net proceeds available for distribution.

A Good Divorce Judgment Anticipates Problems. When one spouse will keep the home, the divorce judgment should clearly address refinancing deadlines, responsibility for expenses, and what happens if refinancing fails. If the home will be sold, the judgment should establish a workable sale process.

Introduction

For many divorcing couples in Maine, the family home is both their largest asset and their most emotionally significant piece of property. The basic options are usually straightforward: sell the home and divide the net proceeds, or allow one spouse to keep it while appropriately addressing the other spouse’s interest. Deciding which option makes sense can be considerably more complicated.

Divorcing spouses rarely view a family home as simply an investment. It may be where the children have grown up, the center of family routines, or a property into which the spouses invested years of work. Selling it can feel like another significant loss during an already disruptive time. On the other hand, keeping a house that is no longer affordable on one income can turn an emotional attachment into a long-term financial problem.

Maine law raises several important questions. Is all of the home’s value marital property? What is the property worth? How much debt is secured by it? Can one spouse realistically refinance? How should the other spouse receive their share of the marital estate?

Under Maine’s property-division statute, 19-A M.R.S. § 953, courts divide marital property in proportions they consider just after considering all relevant factors. The statute specifically allows the court to consider the desirability of awarding the family home, or the right to live there for a reasonable period, to the spouse with whom the children reside. That does not mean the parent with whom the children live automatically receives the house. Instead, the court considers the home as part of the spouses’ overall financial circumstances and the equitable division of their marital estate.

Understanding these rules turns the question of “Who gets the house?” into a more useful analysis of property classification, value, equity, affordability, and long-term financial stability. The starting point is Maine’s law governing the division of marital and nonmarital property.

Maine Law Governing the Family Home in Divorce

Maine Divides Property Equitably, Not Necessarily Equally

Maine’s primary property-division statute is 19-A M.R.S. § 953. When granting a divorce, the court must set apart each spouse’s nonmarital property and then divide the marital property in proportions it considers just after considering all relevant factors.

Those factors include each spouse’s contribution to acquiring marital property, including contributions as a homemaker; the value of the property set apart to each spouse; each spouse’s economic circumstances; and economic abuse by a spouse. The economic-circumstances factor specifically includes the desirability of awarding the family home, or the right to live there for a reasonable period, to the spouse with whom the children reside.

A “just” division is not necessarily an equal division. In Hutt v. Hanson, 2016 ME 128, the Maine Supreme Judicial Court, also known as the Law Court when exercising its appellate jurisdiction, reiterated that an equitable division of marital property does not necessarily require an equal division. More recently, in Newman v. Riser, 2025 ME 72, the Law Court again applied § 953 when reviewing a divorce court’s division of the marital estate, including its treatment of the marital residence.

This gives Maine courts substantial flexibility. One spouse might receive the home while the other receives a greater share of retirement accounts, investments, cash, or other assets. The court considers the fairness of the overall distribution rather than mechanically dividing each individual asset in half.

Is the Home Marital or Nonmarital Property?

Before dividing the home’s value, the court must determine whether it is marital property, nonmarital property, or a combination of both.

Under 19-A M.R.S. § 953, property acquired by either spouse after marriage and before a decree of legal separation is generally presumed to be marital property, regardless of whether title is held jointly or in only one spouse’s name. The statute recognizes several exceptions, including certain property acquired before marriage, by gift or inheritance, or in exchange for qualifying nonmarital property.

The analysis can become more complicated when one spouse owned the house before marriage. Suppose one spouse purchased the home five years before the wedding, but the parties then lived there for twenty years, made mortgage payments during the marriage, and completed substantial improvements. The house may contain both marital and nonmarital components, and determining the parties’ respective interests may require evidence concerning the property’s value, mortgage history, improvements, and sources of funds rather than simply looking at the deed.

Maine appellate decisions describe property division as a three-step process: first, distinguish marital property from nonmarital property; second, set apart each spouse’s nonmarital property; and third, divide the remaining marital property in a just manner. See Miliano v. Miliano, 2012 ME 100; Greenleaf v. Greenleaf, 2018 ME 23. The burden of establishing the marital and nonmarital components can depend on the circumstances, including when the property was acquired and what occurred during the marriage.

Determining the Home’s Value and Equity

Once the parties or the court identify the ownership interests in the home, they need reliable information about the property’s value and the debt secured by it.

A basic equity calculation starts with fair market value and subtracts the mortgage balance and other applicable liens. A house worth $600,000 with a $300,000 mortgage therefore has approximately $300,000 in gross equity. That does not automatically mean each spouse is entitled to $150,000. The court must still consider any marital and nonmarital interests and the overall equitable distribution of the marital estate.

When the spouses dispute the home’s value, an appraisal can provide important evidence, although other competent valuation evidence may also be considered. In Weinle v. Estate of Tower, 2025 ME 62, the Law Court explained that a trial court’s determination of property value is reviewed for clear error and upheld the court’s valuation of a home because it was supported by the evidence. The decision illustrates the trial court’s role in evaluating competing valuation evidence and determining what evidence it finds credible.

The calculation of equity also requires care. In Newman v. Riser, 2025 ME 72, the trial court awarded the marital home to the husband and awarded the wife one-half of its equity. A clerical error in the property-distribution table, however, effectively counted the home’s equity twice and distorted the overall financial calculation. The Law Court vacated the property-distribution calculations and remanded the case for correction, including reconsideration of other financial orders that may have been affected by the error.

Newman also illustrates an important distinction between current equity and the potential net proceeds of a future sale. The Law Court upheld the trial court’s decision not to reduce the home’s value by hypothetical expenses associated with a possible future sale when the husband was retaining the property. Estimated future selling costs therefore should not automatically be treated as a reduction in home equity simply because the property might someday be sold.

Selling the Family Home

Selling the home is often the cleanest solution. This may make sense when neither spouse can afford the home independently, both want access to the equity, or maintaining joint financial ties would create unnecessary risk. At closing, the sale proceeds can be used to pay the mortgage and appropriate closing expenses, with the remaining net proceeds divided according to the divorce judgment or settlement.

While the divorce is pending, however, one spouse ordinarily cannot simply sell the home without the other spouse’s agreement or court authorization. Under 19-A M.R.S. § 903, Maine’s preliminary injunction generally prohibits either spouse from damaging, destroying, transferring, encumbering, concealing, selling, or otherwise disposing of property owned or claimed by either or both spouses. Maine Rule of Civil Procedure 104 governs the issuance and operation of the preliminary injunction, which generally remains in effect until final judgment, dismissal of the case, or revocation or modification by the court.

When the spouses agree to sell, their agreement should address more than simply whether and when the property will be listed. A practical agreement may establish a process for selecting a real estate broker, setting and adjusting the listing price, making repairs, handling showings, and responding to offers. It should also address responsibility for the mortgage and other carrying costs, occupancy before closing, closing expenses, and distribution of the net proceeds.

If the spouses cannot agree about whether or how to sell the home, the issue may need to be resolved by the court as part of the divorce and its division of the marital estate.

Keeping the Home and Buying Out the Other Spouse

When one spouse wants to keep the house, the next question is how to account for the other spouse’s interest as part of the overall property division.

A buyout does not necessarily require an immediate cash payment equal to half, or any other particular percentage, of the home’s equity. The parties may use other marital assets to balance the distribution. For example, one spouse might receive more of the home equity while the other receives a greater share of retirement accounts, investments, cash, or other assets.

Newman v. Riser, 2025 ME 72, provides an example of this broader approach. The trial court awarded the marital residence to the husband, required him to assume the mortgage, and allocated half of the home’s equity to the wife as part of the overall property distribution. The case illustrates that the court can address the house together with the parties’ other property and debts rather than treating the home as an isolated asset.

The practical issue is affordability. Before negotiating a settlement built around one spouse retaining the house, that spouse should investigate whether they can qualify for any necessary financing and comfortably afford the mortgage, taxes, insurance, maintenance, and other expenses after divorce.

Refinancing the Mortgage

One of the most important distinctions in divorce is the difference between ownership of the home and liability for the mortgage loan.

A court can award the property to one spouse in a divorce. That does not ordinarily eliminate the contractual rights of the mortgage lender. If both spouses are obligated on the loan, transferring ownership of the home to one spouse does not by itself release the other spouse from the debt.

Consequently, divorce judgments often require the spouse receiving the house to refinance the mortgage into their own name. The details of that requirement can be critical. Until refinancing or another lender-approved release occurs, a spouse who no longer owns the home may remain legally responsible for the loan.

McBride v. Worth, 2018 ME 54, illustrates the problems that can arise when a refinancing provision depends on uncertain future circumstances. The divorce judgment required refinancing when mortgage-market conditions improved and the wife became financially capable of refinancing. The meaning and enforceability of that obligation later became the subject of substantial post-judgment litigation.

The practical lesson is that refinancing provisions should be as specific as possible. A settlement can establish a deadline, describe the required efforts, and explain what happens if refinancing fails. A common contingency requires the spouse retaining the home to list the property for sale if they cannot refinance by a specified date.

Financial Disclosure and Evidence

Good decisions about the family home depend on reliable financial information. Maine Rule of Civil Procedure 108 requires financial statements in divorce cases involving property division, spousal support, or attorney fees. These sworn statements provide information about the parties’ assets, debts, income, expenses, and marital and nonmarital property.

For a family home, relevant documents may include deeds, mortgage and home-equity loan statements, appraisals, purchase and refinancing records, and evidence tracing any claimed premarital, inherited, or other nonmarital interest. Documentation concerning significant improvements and the source of funds used to pay for them may also become important.

Financial information should also remain current as the case progresses. Mortgage balances can decline, property values can change, and a spouse’s ability to qualify for refinancing may be different by the time the parties reach settlement or trial.

The practical point is simple: decisions about keeping, selling, or refinancing the home should be based on documented value, debt, ownership interests, and realistic financing rather than estimates or assumptions.

Common Examples

One Spouse Can Afford to Keep the House

Suppose a couple purchased a Portland home during their marriage. It is now worth $650,000 and has a $350,000 mortgage, leaving approximately $300,000 in gross equity. The wife wants to remain there with the children and qualifies to refinance the mortgage into her own name.

The parties could agree that she receives the home, assumes responsibility for the mortgage, and offsets the husband’s interest in the home’s equity through the overall property division. That does not necessarily require paying him entirely in cash. For example, he might receive a greater share of retirement accounts, investments, or other marital assets to help balance the distribution.

Neither Spouse Can Afford the Home Alone

Assume the same $650,000 property, except neither spouse can obtain the financing necessary to keep the home independently. Both would prefer that the children remain in the house.

That preference is understandable, but keeping both spouses tied to the mortgage indefinitely may create significant financial risk. If neither spouse has a workable way to retain the property and address the other’s interest, selling the home may provide the most practical solution. The sale can pay off the mortgage and appropriate closing expenses, with the remaining net proceeds allocated between the spouses as part of the overall property division.

One Spouse Owned the House Before Marriage

Suppose the husband bought a Bangor home three years before marriage and had substantial equity in the property on the wedding date. During a fifteen-year marriage, the spouses lived there, made mortgage payments with marital funds, and completed significant improvements to the property.

The correct analysis is not simply that the husband gets the house because he purchased it before the marriage. Nor does living in the home together necessarily make all of its value marital property. The house may have both marital and nonmarital components, requiring evidence concerning the premarital equity, mortgage payments made during the marriage, improvements to the property, changes in value, and the sources of funds involved.

Refinancing Fails After Divorce

Suppose a judgment awards the wife the home and requires her to refinance the mortgage within 120 days. She applies to several lenders but cannot qualify.

If the judgment requires the parties to list the house for sale when refinancing fails, the consequences are clear. If the judgment merely requires her to “attempt to refinance” without establishing a deadline or explaining what happens if she cannot qualify, another dispute may develop. McBride v. Worth, 2018 ME 54, illustrates why clear deadlines and contingency provisions matter.

One Spouse Wants to Sell Immediately

Finally, suppose the husband believes the real estate market is favorable and wants to sell the home while the divorce remains pending, but the wife objects.

He generally cannot simply proceed with a unilateral sale. Maine’s preliminary injunction restricts a spouse from selling or transferring property while the divorce is pending without the other spouse’s written agreement or court authorization, subject to the statutory exceptions. The parties can reach an agreement about selling the home or ask the court to resolve the issue rather than acting first and litigating afterward.

Fictional Fact Pattern: Keeping the Home Depends on Financing

Sarah and Michael are a fictional Maine couple in their seventeenth year of marriage with two school-age children. They own a home in Falmouth, an affluent community in Cumberland County, worth approximately $900,000. With a $400,000 mortgage, the property has approximately $500,000 in gross equity before considering any other relevant adjustments.

Sarah wants to keep the home because the children attend nearby schools, have established friendships and activities in the community, and will reside primarily with her. Michael agrees that remaining in the home could provide stability for the children, but he also needs to receive an appropriate share of the marital estate so that he can establish a separate household.

Initially, they assume Sarah can refinance the mortgage and make a cash payment to Michael to account for his interest in the home’s equity. Their financial disclosures reveal a problem. Sarah earns $135,000 annually, but the combination of the existing mortgage and the additional financing needed for a substantial cash payment makes the proposed arrangement difficult for her to finance.

The parties obtain an appraisal and document their other assets and debts. They also have significant retirement and investment accounts accumulated during the marriage. Sarah proposes receiving the house while Michael receives a larger share of those assets, reducing the amount of cash Sarah must raise through refinancing. Michael initially prefers more cash because he hopes to purchase another home.

If the case proceeded to trial, the court would consider the entire property division under 19-A M.R.S. § 953. The fact that the children will primarily reside with Sarah and could remain in their existing home is relevant, but it does not automatically determine who receives the house or eliminate Michael’s interest in the marital estate. The court would also consider the spouses’ economic circumstances, the property awarded to each, and whether the overall distribution is just.

Before trial, Sarah obtains conditional approval for refinancing at a level she can manage. The parties ultimately reach a settlement under which Sarah receives the house, Michael takes a greater share of their liquid and retirement assets, and Sarah makes a smaller equalization payment than she would otherwise need to make if the parties consider the home in isolation.

Their agreement gives Sarah 90 days after judgment to complete the refinance and obtain Michael’s release from the mortgage loan. It also includes a backup provision: if Sarah cannot complete the refinancing by the deadline, subject to a short, specifically defined extension, the property must be listed for sale under an agreed procedure.

The result addresses much more than who gets the house. It accounts for the children’s stability, the value and equity in the home, Michael’s need to eliminate continuing mortgage liability, Sarah’s borrowing capacity, the parties’ other assets, and the possibility that financing may fail. Careful planning around each of those issues can reduce risk. It can also help prevent additional litigation over the family home after divorce.

Frequently Asked Questions

Does the family home have to be sold in a Maine divorce?

No. The court may order the sale of the home or award it to one spouse. It may also establish another arrangement as part of the overall property division. Maine law also allows the court to consider awarding the family home to the spouse with whom the children reside. The court may also grant that spouse the right to live there for a reasonable period.

Is home equity automatically divided 50/50?

No. Maine follows equitable distribution under 19-A M.R.S. § 953. The court divides marital property in proportions it considers just after considering all relevant factors. An equal division may be appropriate in some cases, but the law does not automatically require it.

If the house is only in my name, is it mine?

Not necessarily. Courts generally treat property that spouses obtain during the marriage as marital property, regardless of whether one or both spouses hold title. A home acquired before marriage or involving another recognized nonmarital interest requires a more detailed analysis.

Can I sell the house while the divorce is pending?

Generally, not without your spouse’s written agreement or court authorization. Maine’s preliminary injunction restricts the sale, transfer, or encumbrance of property while the divorce is pending. Certain statutory exceptions apply.

Does signing a deed remove me from the mortgage?

No. Transferring ownership of the home does not by itself release a borrower from liability for the mortgage loan. Both spouses remain responsible for the loan unless they refinance it. A lender-approved release can also remove one spouse from the obligation.

What happens if my spouse cannot refinance?

That depends in part on what the divorce judgment or settlement requires. A well-drafted agreement can establish a refinancing deadline. It can also explain what happens if the spouse keeping the home cannot obtain financing. One common contingency requires the parties to list the home for sale if refinancing fails.

How is the house valued?

Parties commonly use an appraisal when they dispute the home’s value, although a court may consider other competent valuation evidence. Reliable evidence becomes particularly important when the home’s equity represents a substantial portion of the marital estate.

Can other property be used to offset home equity?

Yes. A spouse who keeps the home does not necessarily have to compensate the other spouse entirely with cash. The court may allocate retirement accounts, investments, cash, or other marital assets as part of the overall property division.

Who pays the mortgage during the divorce?

That depends on the parties’ circumstances, any agreement between them, and applicable court orders. Responsibility for mortgage payments during a pending divorce remains separate from the question of how the parties ultimately divide the home’s ownership and equity.

Final Thoughts

Deciding what happens to the family home in a Maine divorce involves several considerations. One is which spouse would prefer to remain there. The parties may need to determine whether the property is marital or nonmarital. They may also consider its value, equity, and mortgage liability. Affordability and the children’s housing needs may also affect the decision. The parties should consider how the home fits into the overall division of the marital estate.

Maine law gives courts substantial flexibility under 19-A M.R.S. § 953 when dividing property. Courts seek a just division rather than requiring every asset to be divided equally. Depending on the circumstances, one spouse may keep the family home. The other spouse may receive value through cash, retirement accounts, investments, or other property.

When one spouse will keep the home, a well-drafted settlement or judgment should also anticipate potential problems. Confirming the home’s value and realistic refinancing options can help reduce uncertainty. Establishing clear deadlines and allocating responsibility for expenses can also help. Deciding what happens if financing fails may prevent additional disputes after the divorce.

About the Author: Damian Turco is the Founder and Managing Partner of Turco Legal and has practiced divorce and family law since 2008.
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This article is for informational purposes only and should not be interpreted as legal advice. Articles on our blog are written at a historical point in time and the information presented accurately reflects the law at the time of the article’s writing. If you’d like to better understand how the law applies to your case, schedule an attorney consultation by calling any of our offices or by clicking the Schedule a Consultation link on this page.