Getting divorced is a big decision, but the kind of big decision that comes with hundreds of smaller ones attached. Even worse, all those decisions have to be made alongside someone you're likely experiencing a lot of conflict with, and involve legal mediation – it doesn't have more stressful .
Still, it's one thing to split up the wedding china or decide who gets which furniture pieces. It's another to figure out what goes on to your home.
Jointly Owned Property
When a couple that jointly owns a home experiences the divorce process, a number of things have to happen. First, the pair needs to decide how they would like to dispense with the property, and they have a number of options. They may decide to sell the house and split the proceeds, the most straightforward option; one may decide to buy-out the other's shares in the home and otherwise split assets in 2; a treadmill 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 is important to evaluate your choices with help from your lawyer to make sure you won't incur unexpected costs or other issues.
Determining how to handle a jointly owned property could be particularly challenging if the couple still owes cash on the mortgage, which most do, because of the term lengths of all mortgages. If a person person chooses to buy out the other's shares in the home, for example, they're paying for the equity that individual may have had, but now they're also responsible for the entire mortgage. Which may be untenable.
Is It truly Jointly Owned?
Another issue that commonly pops up when confronted with the disposition of a home during divorce is the question of whether a house is really jointly owned. This may mean some things, including that both people's names are not included on the deed but both contributed financially towards the repair off the property, or conversely that just one person has financially led to the home, but both people's names are on the deed. Either way, couples could find themselves handling a legal situation they feel does not reflect reality.
When confronted with this type of complicated situation, the home's disposition will depend on numerous legal particulars. Based on divorce attorney Rowdy Williams, “Though this will depend on state regulations, marital property is typically assumed to be divided 50/50 in the event of a divorce, while property that predates the wedding is addressed separately. With regards to arguments that the couple has unequal investments home based ownership, however, a skilled divorce attorney might be able to make an argument for a more nuanced approach. This may lead to a protracted valuation process, but is worthwhile in search of the specified outcome.”
If you are the only one who has put money into the household home, you might have put both names on the deed years ago for legal reasons like inheritance, however that plan may be working against you. Taking your time and effort with asset valuation and division, then, often means dragging your divorce but protecting your interests.
What About The Kids?
Perhaps a possible problem more fraught than coping 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 kids can handle less consistency and while they may struggle, they can articulate their feelings, but younger kids need a great deal of structural support, and often that support looks like using a single place to call home.
How can a divorced couple provide the youngster or kids with just one 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 within the original home, experiencing little if any disruption, while the parents relocate and out based on the custody schedule. In doing so, the couple continues to co-own their main home together and then typically rent another apartment that they rotate into once they don't have custody. It's still an uncommon setup, only one that's growing in popularity and it is generally a temporary strategy that families use until their kids 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 instance, suppose you have a premarital agreement that outlines particular terms legitimate estate division or assets more generally. If so, those terms may supersede the conventional rules for division of property.
Another possible path some couples take, whether they can afford it, would be to retain shared property, sometimes renting it out temporarily, while waiting for more competitive market conditions to market. When creating such decisions, you need to consult with your lawyer and arrange for an appropriate timeline. If you wait more than 3 years to market your property after leaving, you will be susceptible to capital gains tax, but selling a house in the middle of a divorce – before it's fully settled – could be complicated in certain states. This is when your lawyer is available in: they'll help you plot all of your options.
The more amicable your divorce, the more space you'll have to navigate the next steps, whether that's selling early, waiting to market, nesting, or something else entirely. By continuing to keep the peace, you also make it more likely that your former spouse will still treat you like a partner during these matters.
In complicated divorce proceedings, cooperating rather than against one another can make a realm of difference, so put your best foot forward. When all is said and done, you can part ways for good (a minimum of without having kids), but be sure to get the big issues out of the way first.