If there are children, the custodial parent gets the house. Ok – this might be too general but it’s a good “rule of thumb.” Oh – do not fight for custody of the children as a way of getting the house. Do request custody because it’s best for your children.
What if there are no children? The courts will usually order the house sold if the spouses cannot otherwise agree. This is especially true if both parties are on the mortgage note (unless the party with the house can refinance) or if there is considerable equity and one of the spouses wants their money now. Again, this is the general rule – exceptions exist.
But even if your spouse will give you the house should you take it?
After all, it is not always prudent to accept ownership and all the financial obligations that go with it (i.e. ordinary maintenance, major repairs, etc). Being cynical here, but maybe there’s a reason your ex is happy to give the place to you.
The link below sets forth a rough formula to help you determine if you can afford the house post breakup. If you cannot afford the home, then sell it and walk away. Over the long haul, you will be glad you did.