Divorce is complicated. There is no question about that. Dividing real estate in a divorce can make things that much more so. However, it doesn’t have to be too daunting.
Understanding how property is divided in a divorce can a go a long way in how assets are actually split up among spouses.
As you might guess, one of the more common questions in divorce cases is, “what happens to the house or other real estate in a divorce?”
Today we’ll cover these type of questions to help shed some light on the topic.
When Real Estate Property Was Purchased in the Marriage
One of the main factors that is considered when dividing property or real estate is when it was actually purchased. This is important because say for instance one of the spouses purchased a home before they got married. This could then make the house a pre-marital asset. This means that it would belong to the purchasing spouse exclusively.
However, if both parties in a marriage bought the house together, then it’s likely the house became a marital asset. This means that each spouse would be entitled to equitable distribution of the home if it were to be sold for instance. In addition, if the property was also used to generate income for the married couple, this would also subject it to equal distribution potentially.
As mentioned, when one of the parties owns property before getting married, they may keep exclusive ownership of the real estate. However, the property would need to stay a benefit of the owning party.
That is to say, if the property begins being used for marital purposes, such as serving as the living space of the married couple, then this could change the interest in the property to be distributed fairly.
Likewise, if the real estate property is used for income and proceeds from the property are deposited into a joint bank account shared by the married couple, this could also change the interest.
Handling Real Estate Property Amicably in a Divorce
When a divorcing couple can remain civil, one of better options to consider is selling the home or property. Divorcing spouses should try to agree beforehand exactly how the proceeds will be divided between the two. More often than not, this is easier said than done. But if it can be done, great.
If not, then mediation might be another option to consider to help work out an agreement between the two parties. Additionally, if attorneys are involved, he or she could also negotiate on your behalf to help come to an agreement.
If neither of these methods work, then the decision could be left up to a judge to make a ruling. However, you cannot be certain how they are going to order the proceeds to be distributed. Therefore, you are much better off trying to come to an agreement with your divorcing spouse together.
Additional Methods
One other common way to determine how real estate property should be divided up is by looking at percentages. For example, if each spouse contributed to the mortgage payments, this could be used to determine how much each spouse invested proportionately.
While this is not an exact science, it can give an idea to the percentage of value contributed. In turn, this could help come up with a more accurate number for the division of property sale.
When Both Parties Want to Keep the House
When both of the divorced spouses want to keep the house or property, things become more complicated. In some cases, one of the parties is willing to part from ownership. In doing so, the former spouse staying in the house can buy out their spouse. They do this by purchasing their interest in the home.
Additionally, the former spouse that is walking away will need to be taken off any obligations on the home. This includes mortgages or any deeds to the home.
Now say both couples refuse to give up the house. In this case, you can almost be assured that a decision will be made by a judge. However, that the judge is going to try to be fair here by making sure one of the divorcing spouse doesn’t get more than the other.
They will do this by granting ownership to one of the divorcing spouses, while ordering them to give up other assets they may have wanted to keep.
At the end of the day, it may seem like fighting for real estate is worth it, but often it leads to lengthy litigation where neither side really ends up winning.
If at all possible, it’s best to try to come to an agreement with your former spouse on your own to avoid a legal battle on your hands. Doing so could save you a lot of time and money in the long run.
Need Help Dividing Real Estate in a Divorce?
While it’s certainly best to try to work with your former spouse on the terms of real estate being divided, an attorney can help. At our family law firm, our divorce attorneys specialize in real estate and property division.
We have helped a number of divorcing spouses come to terms with the division of their real estate property. Many of which were complex in nature. And we’d like to help you too. If you need legal assistance dividing real estate in a divorce, please contact us.
