Virginia
Selling or Keeping the House in a Virginia Divorce
This page covers Virginia law only.
In a Virginia divorce you have three choices for the house. Sell it and split the money. One spouse buys the other out. Or both stay on title for a set time. Virginia Code section 20-107.3 divides marital property by listed factors and states no fixed percentage. Decide with numbers, not emotion.
By Marc Cormier
Licenses: Maryland #620443 | Virginia #0225175181 | DC #SP98365998 | Berkshire Hathaway HomeServices
27+ years in real estate. 800+ closed transactions.
Certified as a Certified Divorce Real Estate Expert (CDRE) in 2014.
Last updated: October 2, 2026
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Who gets the house in a Virginia divorce?
Virginia does not hand the house to one spouse by default. Under Virginia Code section 20-107.3(A), the court, on request of either party, determines the legal title as between the parties and the ownership and value of all property. It considers which property is separate, which is marital, and which is part separate and part marital. It also determines the nature of all debts. The court determines value as of the date of the evidentiary hearing.
Marital property includes all property titled in the names of both parties, whether as joint tenants, tenants by the entirety, or otherwise, with limited exceptions the statute lists. It also includes other property either party acquired during the marriage that is not separate property. Separate property includes property acquired before the marriage. It also includes property acquired during the marriage by bequest, devise, descent, survivorship, or gift from a source other than the other party.
Here is where people get hurt. Mixing separate and marital money changes the label. Under Virginia Code section 20-107.3(A)(3)(f), separate property retitled in the joint names of the parties is deemed marital. To the extent the property is retraceable by a preponderance of the evidence and was not a gift, it keeps its original classification. Keep the records.
Virginia Code section 20-107.3(C) says the court is allowed to divide or transfer, or order the division or transfer, or both, of jointly owned marital property, jointly owed marital debt, or any part of either. Section 20-107.3(D) says the court is allowed to grant a monetary award to either party, payable in a lump sum or over a period of time in fixed amounts.
The court decides the amount of any division or transfer, any monetary award, the apportionment of marital debts, and the method of payment after considering these factors under section 20-107.3(E):
- 1.Contributions, monetary and nonmonetary, of each party to the well-being of the family.
- 2.Contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of the marital property.
- 3.The duration of the marriage.
- 4.The ages and physical and mental condition of the parties.
- 5.The circumstances and factors that contributed to the dissolution of the marriage.
- 6.How and when specific items of marital property were acquired.
- 7.The debts and liabilities of each spouse and the basis for them.
- 8.The liquid or nonliquid character of all marital property.
- 9.The tax consequences to each party.
- 10.The use or expenditure of marital property for a nonmarital separate purpose, or dissipation, in anticipation of the dissolution.
- 11.Such other factors as the court deems necessary or appropriate.
The statute lists factors and states no fixed percentage. Source: https://law.lis.virginia.gov/vacode/title20/chapter6/section20-107.3/
Your three options for the house
Quick comparison
| Option | What you get | What you risk | Works best when |
|---|---|---|---|
| Sell and split | A clean break. Neither of you carries the mortgage after closing. | A slow sale if you disagree on price, showings, or repairs. | You both want out and agree on terms. |
| One spouse buys out the other | Stability, especially with children and school ties. | The lender says no to the new loan and the buyout fails. | One spouse affords the house on one income. |
| Keep it together for a set time | Time. | Two people share a financial lock after trust is gone. | A written plan sets a sale date. |
Option 1. Sell and split the proceeds
You list the house. The sale price pays the mortgage and the costs of sale. What remains is split under your written agreement or the court's order.
What you get: a clean break.
What you risk: a slow sale. Delay costs money. The mortgage, taxes, insurance, and utilities keep running while the house sits.
Option 2. One spouse buys out the other
One spouse keeps the house. That spouse refinances into one name and pays the other spouse an agreed share of the equity. Virginia Code section 20-107.3(D) also lets the court grant a monetary award, payable in a lump sum or over time.
What you get: stability, especially with children and school ties.
What you risk: the lender decides whether you qualify on your own income. If the loan fails, the buyout fails and the house goes back on the table. Price the mortgage, taxes, insurance, and repairs on one income before you fight for the house. Ask a lender first.
If keeping the home does not work, here is how a divorce sale runs.
Option 3. Keep the house together for a set time
Both of you stay on title. You agree on who lives there, who pays, and when you sell. Many families choose this when children are young.
What you get: time.
What you risk: everything that goes wrong when two people share a financial lock after trust is gone. A missed payment hurts both of you. Put the sale date, the trigger events, and the payment rules in writing.
If keeping the home does not work, here is how a divorce sale runs.
A fourth path to know about: exclusive use while the case is pending
Virginia Code section 20-103(A) says that while a case is pending, the court is allowed to order exclusive use and possession of the family residence during the pendency of the suit. That order does not change who owns the house. The statute I read gives this power for the time the case is pending. Ask your attorney about orders after the decree.
If keeping the home does not work, here is how a divorce sale runs.
Should we sell before or after the divorce is final?
Short answer: it depends on your taxes, your agreement, and who controls the process. Talk to your attorney and a CPA before you list.
Selling before the decree keeps one clean file. Both of you sign the listing agreement and the contract when both are on title. Your attorney puts the sale terms in writing first. Your agreement says who picks the price, who pays for repairs, and how the proceeds split.
Selling after the decree gives each of you control over your own share. It also removes the built-in referee. Price fights, repair fights, and showing fights after a decree land in front of a judge.
Virginia Code section 20-107.3(E)(9) lists the tax consequences to each party as a factor the court considers. Taxes belong in the plan from day one.
The tax point (federal, shared by every state)
- IRS Topic no. 701 says you qualify to exclude up to $250,000 of gain from income, or up to $500,000 if you file a joint return with your spouse.
- Ownership test: you owned the home at least 24 months of the last 5 years before the sale.
- Use test: you used it as a residence at least 24 months of the previous 5 years.
- On a joint return, either spouse meets the ownership test and both meet the use test individually.
- IRS Publication 523 says that if your former spouse is allowed to occupy the home under a divorce or separation instrument and lives there as a principal residence, you treat the property as your own residence for the exclusion.
- Sources: https://www.irs.gov/taxtopics/tc701 and https://www.irs.gov/publications/p523
example of when this matters:
| Line | Amount |
|---|---|
| Bought for | $300,000 |
| Sells for | $700,000 |
| Gain, defined here as sale price minus purchase price | $400,000 |
| Exclusion if one spouse keeps the house and sells alone later | $250,000 |
| Gain above the exclusion ($400,000 minus $250,000) | $150,000 |
| Exclusion on a joint return | $500,000 |
| Gain above the exclusion on a joint return ($400,000 minus $500,000, floor of $0) | $0 |
Your CPA adjusts the gain for your own records and applies the tax rate. Timing changes the tax bill. Ask before you list, not after you close.
Can you sell the house while the divorce is still pending?
Short answer: both owners sign, and you check for orders first.
The rules that control the sale
- Both owners sign. Do both spouses have to sign the listing agreement? Yes, when both are on title. Confirm the signing requirements for your sale with your attorney.
- Check for court orders first. Virginia Code section 20-103(A) lists orders the court is allowed to make while a case is pending. They include exclusive use and possession of the family residence, an order to preserve the estate of either spouse so it is forthcoming to meet any decree, and an order to compel either spouse to give security to abide the decree. Ask your attorney whether any order, agreement, or filing in your case touches selling, transferring, or borrowing against the home. I do not say whether an order bars a sale.
- If one of you refuses. When you cannot agree and neither of you buys the other out, Virginia Code section 20-107.3(C) says the court is allowed to order sale of real property by private sale by the parties, through an agent the court directs, or by public sale as the court directs, without the necessity for partition. I do not predict what a court will do in your case.
- Mortgage and carrying costs. The mortgage, taxes, insurance, and utilities keep running while the house is listed. Decide in writing who pays them and whether that spouse is repaid from the proceeds.
Spell out the net proceeds in writing
Do not agree to "50/50" and stop there. Before you list, write down:
- Who pays the agent commission, repairs, staging, and the mortgage while the house is listed.
- Whether those costs come off the top of the sale or get repaid to one spouse.
- What happens if the house sells below your target price.
- Who signs off on repair spending and price drops.
This is the paper that stops a fight at month three.
Who holds the money
Ask your title company and your attorney who holds the sale proceeds and when each spouse is paid. Put the answer in your written agreement before you list.
The tax point most people get wrong
- The $500,000 figure applies when you file a joint return with your spouse and both of you meet the use test. After a divorce, a spouse who sells alone is looking at the $250,000 figure.
- If one spouse keeps the house and sells later alone, the larger exclusion is gone. Run that number before you agree to a buyout.
- Ask your CPA before you sign a listing agreement, not after you close.
Separation and residency: what the Virginia statutes say
These two rules set when a Virginia divorce is filed. They are timeline context for your house plan. They do not tell you when to list.
- Separation. Virginia Code section 20-91(A)(9) allows divorce on application when the parties have lived separate and apart without cohabitation and without interruption for one year. The period is six months if the parties have a separation agreement and there are no minor children. Minor children means children born of the parties, born of either and adopted by the other, or adopted by both.
- Residency. Virginia Code section 20-97 says one of the parties must have been an actual bona fide resident and domiciliary of the Commonwealth for at least six months before the suit is filed. A member of the Armed Forces stationed or residing in Virginia for six months or more is presumed domiciled and a bona fide resident.
- Sources: https://law.lis.virginia.gov/vacode/title20/chapter6/section20-91/ and https://law.lis.virginia.gov/vacode/title20/chapter6/section20-97/
Each spouse needs their own attorney. I do not give legal advice, and I do not recommend one attorney over another.
How a divorce home sale works, step by step
- 1
Agree on the method. Both of you decide: list with an agent, sell to a cash buyer, or buy out.
- 2
Get the value. Use a formal appraisal or a detailed market analysis from an agent. If you disagree, use two valuations and a written tiebreak rule.
- 3
Sign one listing agreement. One agent. Two agents means two commissions and two opinions. Both owners sign when both are on title.
- 4
Set the showing rules in writing. Who is out of the house, when, and how notice works.
- 5
Prepare the house. Agree on a repair budget cap and who approves spending.
- 6
Review offers together. Write down in advance what price and terms each of you accepts.
- 7
Close and split the money. The sale pays off the mortgage and the costs. The remaining proceeds go where your written agreement or the court's order says.
Most delays come from steps 2, 4, and 6. Fix those with a written agreement before you list.
Get my free book, Best Selling Options in a Divorce.
What the sale puts in your pocket
Run a net sheet before you decide anything. A net sheet shows what each of you walks away with after the mortgage, commission, and costs.
example:
| Line | Amount |
|---|---|
| Sale price | $750,000 |
| Mortgage payoff | minus $300,000 |
| Commission at an example rate of 6% ($750,000 x 0.06) | minus $45,000 |
| Closing costs | minus $8,000 |
| Repairs | minus $14,000 |
| Net before taxes ($750,000 minus $300,000 minus $45,000 minus $8,000 minus $14,000) | $383,000 |
| Even split ($383,000 divided by 2) | $191,500 each |
Carrying cost is a separate note. It is not inside that net. At $3,500 a month for mortgage interest, taxes, insurance, and utilities:
| Months on the market | Carrying cost |
|---|---|
| 3 months | $10,500 |
| 4 months | $14,000 |
| 6 months | $21,000 |
| 12 months | $42,000 |
| 18 months | $63,000 |
The even split is arithmetic for teaching. Virginia Code section 20-107.3 lists factors and states no fixed percentage. Your agreement or the court sets the share. The 6% is an example rate. Commission is negotiable.
What this example leaves out
- Transfer and recordation taxes. These taxes exist for some sales. Ask your title company whether they apply to your sale and who pays. This page names no rate.
- Capital gains tax (see Section 3).
- Payoff extras on the mortgage, such as late fees, liens, or a second loan.
- Attorney fees and moving costs.
- Mortgage payments, taxes, and insurance paid since the filing date.
Stress test your own numbers
- Price 5% lower than you hoped.
- Add two months on the market.
- Add a repair overrun.
For every line of one worked case, see the net sheet page.
If the deal still works, it is a deal. If not, change the plan now.
Buyout math (the simple version)
| Line | Amount |
|---|---|
| Home value | $600,000 |
| Mortgage balance | minus $250,000 |
| Equity | $350,000 |
| Buyout at an even split ($350,000 divided by 2) | $175,000 |
| New loan to pay off the old mortgage and fund the buyout ($250,000 plus $175,000) | $425,000 |
- Virginia Code section 20-107.3 states no fixed percentage. Your agreement or the court sets the share.
- The spouse who keeps the house also pays closing costs on the new loan and carries the house alone. The lender decides what loan you qualify for.
Where divorce sales go wrong
| Mistake | What it costs |
|---|---|
| Two agents | Two commissions, two opinions, two price fights. |
| Listing before the terms are in writing | One spouse blocks the next step and the sale stalls. |
| Overpricing | Buyers assume somebody is out of touch. The house sits and the price drops anyway. |
| Skipping the tax math | The tax bill arrives after the money is spent. |
| Fighting for the house without checking affordability | Many people win the house and lose it later. |
| Leaving the buyout without a backup | If the new loan falls through, you need a sale date already in the agreement. |
| Using emotion to price | Emotion costs people money. |
Local note for Northern Virginia: The Fairfax Courthouse Self-Help Resource Center is a walk-in resource open to the public at 4110 Chain Bridge Road, Suite 115 (1st Floor), Fairfax, VA 22030, Monday to Friday, 8:00 AM to 4:30 PM, closed holidays. It gives information about court procedures, forms, legal resources, and referrals to legal aid. It does not give legal advice. Source: https://www.fairfaxcounty.gov/topics/courthouse-self-help-center
Northern Virginia counties and communities I serve
- Fairfax County
- Arlington County
- Loudoun County
- Prince William County
- City of Alexandria
- Falls Church and Fairfax City
In each of these places I do the same work. I value the home with comparable sales. I run your net sheet before you list. I manage showings, offers, and closing. I keep a written record of every showing and every decision. I work with your attorneys, mediator, and CPA.
Special situations
Divorce after 50
Older couples face different math. Retirement assets, downsizing, and the cost of carrying a larger home all affect the house. Virginia Code section 20-107.3(E)(4) lists the ages and physical and mental condition of the parties as a factor. Send retirement questions to your attorney and your CPA. Read more: /divorce-real-estate-guide/virginia/blog/gray-divorce-house-virginia/
Higher-value homes
Pricing disputes get bigger when the number gets bigger. Two valuations and a written tiebreak rule matter more here.
Inherited or pre-marital homes
A house you owned first or inherited is not automatically safe. Virginia Code section 20-107.3(A)(1) treats property acquired before the marriage, and property acquired during the marriage by bequest, devise, descent, survivorship, or gift from a source other than the other party, as separate property. Retitling the house in joint names changes the result under section 20-107.3(A)(3)(f). I wrote a book on probate real estate, "Inherited," and I handle these files. Read more: Is an Inherited or Premarital Home Safe in a Virginia Divorce?
Who this guide is for, and who it is not for
For you if
- You own a home and are divorcing in Virginia or considering it.
- You want numbers before you pick a path.
- You work with an attorney and want to understand the house side.
Not for you if
- You want legal advice about custody, support, or other issues. That belongs with your attorney.
- You need a rushed cash sale at any price and have not run the numbers.
- You need safety help. If you are not safe at home, call the National Domestic Violence Hotline at 1-800-799-7233 or call 911.
What I do, and what I do not do
What I do
- Value the house with real comparable sales.
- Give you a net sheet before you decide.
- Manage showings, offers, and closing.
- Work with your attorneys, mediator, and CPA.
- Keep a written record of every showing and every decision.
What I do not do
- Give legal or tax advice. Your attorney and CPA do that.
- Tell you which option to pick for your family.
- Recommend one attorney over another. I am not affiliated with any law firm.
My background
- 27+ years in Maryland, DC, and Virginia real estate.
- 800+ closed transactions across probate, distressed property, and bankruptcy trustee sales.
- Qualified and testified as a real estate expert witness in federal court.
- Certified as a Certified Divorce Real Estate Expert (CDRE) in 2014.
- Author of "Inherited" on probate real estate.
- Brown University graduate.
Common questions about the house in a Virginia divorce
Q1. Do both spouses have to sign the listing agreement?
Yes, when both are on title. Confirm the signing requirements for your sale with your attorney. Before anyone signs, write down the price floor, the repair budget, the showing rules, and who approves a price drop. A listing signed without those terms is where the first fight starts.
Q2. Who gets the house in a Virginia divorce?
No rule hands the house to one spouse. Virginia Code section 20-107.3 has the court determine title, ownership, and value, then sort property into separate, marital, and part of each. The court is allowed to divide or transfer marital property or grant a monetary award. It weighs eleven listed factors. The statute states no fixed percentage.
Q3. Can we sell the house before the divorce is final?
Both owners sign when both are on title. Put the sale terms in writing first. Then ask your attorney whether any order in your case touches the home. Virginia Code section 20-103(A) lists orders the court is allowed to make while a case is pending, including exclusive use of the family residence. I do not say whether an order bars a sale.
Q4. What if my spouse refuses to sell?
Joint title means neither of you sells alone. Start with written terms and one neutral valuation. If talks fail, Virginia Code section 20-107.3(C) says the court is allowed to order a sale by the parties, through an agent it directs, or by public sale, without partition. Delay costs money. At $3,500 a month, six months is $21,000.
Q5. Can I buy out my spouse?
Yes, if you and your spouse agree on value and share and your lender approves the new loan. Equity is value minus the mortgage. On an example $600,000 home with a $250,000 mortgage, equity is $350,000 and an even buyout is $175,000. If keeping the home does not work, here is how a divorce sale runs.
Q6. How is the house valued if we disagree?
Virginia Code section 20-107.3(A) has the court determine value as of the date of the evidentiary hearing. You do not have to wait for that. Order a formal appraisal or collect two independent valuations. Agree in writing on a tiebreak rule before you order them. One shared number ends the argument. Two numbers give each spouse something to defend.
Q7. How long must we live apart before a Virginia divorce?
Virginia Code section 20-91(A)(9) allows divorce on application when the parties have lived separate and apart without cohabitation and without interruption for one year. The period is six months if the parties have a separation agreement and there are no minor children. Ask your attorney how the rule applies to your facts.
Q8. Do I have to live in Virginia before I file?
Virginia Code section 20-97 says one of the parties must have been an actual bona fide resident and domiciliary of the Commonwealth for at least six months before the suit is filed. A member of the Armed Forces stationed or residing in Virginia for six months or more is presumed domiciled and a bona fide resident.
Do you need a divorce attorney?
You should have your own. I am a real estate agent. I do not give legal advice, and I do not work for one spouse against the other.
I am not affiliated with any law firm. I do not recommend one attorney over another. Your spouse needs their own attorney, not yours.
If you need to find one, start here:
Links open in a new tab.
| What an attorney handles | What I handle |
|---|---|
| Who gets the house and the money | The value of the house |
| The marital settlement agreement | The net sheet |
| Court orders that affect the sale | Listing, showings, offers, and closing |
| Custody, support, and everything outside real estate | A written record of every showing and decision |
General information only. Not legal, tax, or financial advice. The referral service is independent of me. I do not guarantee any attorney's work or results.
About the author
Marc Cormier
Licenses: Maryland #620443 | Virginia #0225175181 | DC #SP98365998 | Berkshire Hathaway HomeServices
Co-author of "Cracking the Real Estate Code," a best seller in four Amazon categories on release day, September 2013.
Certified as a Certified Divorce Real Estate Expert (CDRE) in 2014.
Sources
- Virginia Code section 20-107.3, Virginia Code section 20-103, Virginia Code section 20-91, Virginia Code section 20-97: https://law.lis.virginia.gov/vacode/title20/chapter6/
- IRS Topic no. 701, Sale of your home: https://www.irs.gov/taxtopics/tc701
- IRS Publication 523, Selling Your Home: https://www.irs.gov/publications/p523
- Fairfax Courthouse Self-Help Resource Center: https://www.fairfaxcounty.gov/topics/courthouse-self-help-center
- Virginia Judicial System Self-Help, Find a Lawyer: https://selfhelp.vacourts.gov/page/5/find-lawyer
Keep reading
- Staying in the Family Home in Virginia: Exclusive Use and Carrying Costs
- Who Gets the House in a Virginia Divorce?
- Can You Sell a House Before the Divorce Is Final in Virginia?
- What If Your Spouse Refuses to Sell the House in Virginia?
- What Each Spouse Gets From a Divorce Home Sale in Virginia (net sheet)
General information only. Not legal, tax, or financial advice. Example numbers are for teaching only. This page gives general information about real estate in a Virginia divorce. Every case is different. Talk to a Virginia family law attorney and a CPA about your situation. A real estate professional does not give legal advice.
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