One of the major assets in many divorce or other family law cases, is the family home. It is often a source of conflict. Why? Here are some of the many reasons homes are disputed in divorce or other family law conflicts:
- If there are children, one or both parties may want to retain the home for stability for children;
- The family home can be a “player” in parenting disputes, with a party wanting to keep the home because they are fearful the children won’t want to see them, or that their relationship with the children will be different if that party is not in the home;
- there may be the inability for the parties to purchase a second home so that each has a home;
- One party may have more options for alternate housing such that the other party believes they should be the one to leave the home;
- One party believes they have a better financial ability to maintain the home than the other;
- One of the parties may work or have a business out of the home;
- The home may have been inherited and has been in one party’s family for years such that there is a family or other emotional attachment;
- The conduct of one or both parties makes them feel they “deserve” the home;
- One party may not want the home but may not want the other to have the home either, usually for reasons that stem from real emotion and sense of loss.
What are the options for division of the home in divorce or other family law conflicts? There are several different ways that parties can think about the disposition of their home.
One Party Keeps the Home
One of the parties can keep the home and buy out the other party’s interest as part of the overall division of assets. However, this often comes with a requirement for refinancing any mortgage(s) on the property to remove the other party’s name, which may not be financially possible, or not be possible in the time frame wanted or needed by the party being bought out. The determination of the equity in the property, and the share of that equity payable to the party not keeping the home, can be critical in settlement negotiations where one party wants to keep the home.
Parties can also co-own property, but this requires specific attention in an agreement to details such as length of time of co-ownership, what triggers a sale or buyout, what happens if the party living in the home has a significant other or remarries, who pays the mortgage and other household expenses pending a sale or buyout, and the formula for dividing the equity at the time of sale or buyout. Co-ownership may also tie parties together financially for a period of time, when for some a clean break is preferred.
Sale of the Home
The sale of the home is always an option and for some parties is the path taken. If the home is to be sold, the parties need to determine how the net equity is going to be divided as part of asset division, who is responsible for the costs of readying the house for sale, and responsibility for tax consequences if any.
Continue Sharing the Home
There have also been rare cases where parties have continued to reside in the property together because of unusual circumstances such as very limited finances or disability, but such cases also require attention to the same type of details as co-ownership. In addition, the parties need to consider the terms and conditions of their sharing the same space together and be clear about those parameters in any agreement reached.
Determine What Is Best for You
In order to negotiate and settle the issue of the disposition of the home, parties need to weigh their reasons for wanting to keep or not keep a home against the practical realities of single ownership, co-ownership, sale, or sharing of the home. Working with clients as settlement counsel, as mediator, or as Collaborative Law attorney, we see that clients often come in with their preferred position regarding the home. However, exploring with clients the different options, and getting the appropriate information to understand the consequences of each option, can lead clients to reconsider their original positions regarding disposition of the home. The process of divorce or other family law conflicts allows parties to have an initial goal and to revise or change that goal as they go through the process.
Consider All Options and Ask Experts
Clients should be open to considering all options when thinking about the disposition of the family home. Sometimes outside resources such as financial planners, real estate appraisers or brokers, mortgage brokers, CPAs, or divorce coaches or case facilitators can be helpful in sorting through the options, the financial requirements and/or constraints of each option, and the possible outcome of each option. Both parties should try to recognize and acknowledge the emotional components underlying each party’s view with respect to the family home, as such recognition and acknowledgment can actually help parties talk more freely about the family home and come up with creative solutions in settlement negotiations as to the family home and asset division in general.
Out of court processes such as settlement counsel, mediation, and Collaborative Law provide room for such discussions in an environment that often feels “safer” to parties than the courtroom. It is almost always better to come up with a solution yourselves with the assistance of the appropriate professionals and using the right process for you, than leaving the decision about such an important asset as the family home to the uncertainty of court.
To learn more about how settlement counsel, mediation, and Collaborative Law can benefit you, contact us.