Getting divorced is a big decision, but the kind of big decision that comes with hundreds of much smaller ones attached. Even worse, all of those decisions have to be made alongside someone you’re likely experiencing a great deal of conflict with, and involve legal mediation – it doesn’t get more stressful than that.
Still, it’s one thing to split up the wedding china or decide who gets which pieces of furniture. It’s another to figure out what happens to your home.
Jointly Owned Property
When a couple that jointly owns a home goes through the divorce process, a number of things need to happen. First, the couple needs to decide how they want to dispense with the property, and they have several options. They may choose to sell the home and split the proceeds, which is the most straightforward option; one may choose to buy-out the other’s shares in the home and otherwise split assets in two; or one spouse may choose to forfeit a large amount of other assets or future payments and instead keep the property. Each choice has consequences and it’s important to evaluate your options with help from your lawyer to ensure you won’t incur unexpected costs or other issues.
Determining what to do with a jointly owned property can be particularly challenging if the couple still owes money on the mortgage, which most do, given the term lengths on most mortgages. If one person chooses to buy out the other’s shares in the home, for example, they’re paying for the equity that individual might have had, but now they’re also responsible for the full mortgage. That may be untenable.
Is It Really Jointly Owned?
Another issue that commonly comes up when dealing with the disposition of a home during divorce is the question of whether a property is actually jointly owned. This may mean a few things, including that both people’s names are not included on the deed but both contributed financially to the upkeep of the property, or conversely that only one person has financially contributed to the property, but both people’s names are on the deed. In either case, couples may find themselves dealing with a legal situation they feel does not reflect reality.
When faced with such a complicated situation, the home’s disposition will depend on a number of legal particulars. According to divorce lawyer Rowdy Williams, “Though it depends on state law, marital property is typically assumed to be divided 50/50 in the event of a divorce, while property that predates the marriage is addressed separately. When it comes to arguments that a couple has unequal investments in home ownership, however, a skilled divorce lawyer may be able to make an argument for a more nuanced approach. This can lead to a protracted valuation process, but is worthwhile in pursuit of the desired outcome.”
If you’re the only one who has put money into the family home, you may have put both names on the deed years ago for legal reasons like inheritance, but now that plan may be working against you. Taking your time with asset valuation and division, then, can mean dragging out your divorce but protecting your interests.
What About The Kids?
Perhaps the only issue more fraught than dealing with shared property in the course of a divorce is being a parent trying to navigate divorce with children. Particularly when younger children are involved, parents need to make careful choices about custody and living arrangements with their child’s developmental needs in mind. Older children can handle less consistency and while they may struggle, they can articulate their feelings, but younger children need a great deal of structural support, and sometimes that support looks like having a single place to call home.
How can a divorced couple provide their child or children with a single home? Enter nesting. Nesting is a relatively recent model for shared custody and one that typically involves the divorced couple actually sharing one, if not two, homes. In essence, the child stays in the original home, experiencing little or no disruption, while the parents move in and out based on the custody schedule. In doing so, the couple continues to co-own their main home together and then typically rent a separate apartment that they rotate into when they don’t have custody. It’s still an uncommon setup, but one that’s growing in popularity and is generally a temporary strategy that families use until their children are older.
Other Factors That Determine Property Division
When managing any major legal issue, there are always a number of other possible issues or factors that could complicate things. For example, suppose you have a premarital agreement that outlines particular terms for real estate division or assets more generally. In that case, those terms may supersede the standard rules for property division.
Another possible path some couples take, if they can afford it, is to retain shared property, sometimes renting it out temporarily, while waiting for more competitive market conditions to sell. When making such decisions, it’s important to consult with your lawyer and arrange for an appropriate timeline. If you wait more than three years to sell your property after moving out, you’ll be subject to capital gains tax, but selling a home in the midst of a divorce – before it’s fully settled – can be complicated in some states. This is where your lawyer comes in: they’ll help you plot all of your options.
The more amicable your divorce, the more space you’ll have to navigate your next steps, whether that’s selling early, waiting to sell, nesting, or something else entirely. By keeping the peace, you also make it more likely that your former spouse will still treat you like a partner in these matters.
In complicated divorce proceedings, working together rather than against each other can make a world of difference, so put your best foot forward. When all is said and done, you’ll be able to part ways for good (at least if you don’t have kids), but make sure to get the big issues out of the way first.