The house you shared with your spouse may be the largest asset that needs to be divided up in a divorce. This makes it the likely point of major disputes and headaches. Figuring out the best way of splitting it up can be difficult. It can lead to arguments, complicated legal issues, and unnecessary headaches.
Who decides who should get the house?
A number of factors can determine the different outcomes in this case. Here are some potential solutions that could help you figure out how to approach the situation
Is the house separate or marital property?
The first question you need to address is, “Who owns the house?”
Both spouses might claim ownership, such as in a joint purchase. However, that might not be the case in every situation. If you got married, then purchased a house in a community property state, each of you will receive half the equity value when the house sells.
With divorce, dividing up a home isn’t a clear cut procedure. Most states have community property rules that come into play during divorce. In equitable distribution states, if you can’t arrive at a suitable way of sharing the assets, the court decides the way forward.
The court will arrive at a fair ruling but you may not receive half the assets.
A scenario that makes the situation complex is where one of you owned the property before getting married. If that spouse enforces measures to treat the house as a detached asset, then they might keep the house.
In most cases, assets are mingled when two households unite. If your spouse moves in with you and contributes to the mortgage and maintenance of the house, it automatically turns into a marital asset.
Who makes the decision about which party gets the house?
In many cases, one spouse will stay in the house while the other moves on. However, in other cases a court may rule that the house must be sold. The decision depends on many factors. There are advantages and disadvantages to both methods of dividing up a house. If necessary, make sure to speak with a reputable divorce attorney for legal advice on your specific situation. However, before taking that step try talking it out.
Talking it out with your spouse
Discussing a suitable way of sharing the assets with your house can save a significant amount of money and time. You also have to address the issue of child custody and the likely emotional attachment to the house. These decisions can complicate things fast and might lead to aggravation. However, it doesn’t have to be this way. Always stay calm, cool, and collected. Use logical judgement and always seek a win-win outcome when possible.
The main shortcoming of deciding amongst yourselves, however, can be the possibility of one spouse feeling short-changed by the negotiations and ending up with a significantly lower amount than what they had expected. A dominant spouse is likely to leave their partner disadvantaged. In this case, a legal approach may be preferable.
The court approach
If lawyers and courts take up the matter, you are likely to spend significantly more money than the “talk it out” method. However, this might be necessary in order to adequately solve the problem of property division. As most of us know, lawyer fees can be very costly. However, there are divorce attorneys that advertise their businesses as “discount” firms. Search Google in your area for these listings or ask friends or family for a referral. Also, many courts have free legal aid departments where you can speak with an attorney at no charge. Check with your local court house if necessary.
What to do
If you find yourself in a divorce situation where a house is involved, try everything you can to solve the issue outside of court. This will save money and time. You may find solace in an independent property appraiser who evaluates how the nature of the house influences the settlement agreement.
If you get along well with your spouse, try to work out an amicable solution. If you feel that you don’t like the direction of the discussions at some point, don’t assume everything is okay. Calling in the professionals might be the best way of getting a fair and good deal.
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