“What about the house?” That question is always near the top of a client’s list of worries.
In general terms, the alternatives for dealing with the marital residence (“House”) in a divorce case are:
- Sell it and split the proceeds,
- Award it to one of the parties,
- Continue joint ownership.
What happens to the House is important. Often, the disposition of the House is the axis around which the division of all the other marital property will revolve.
Because every divorce situation is different, what makes sense in dealing with the House depends on the facts of the case. To figure out what is feasible requires a look at the facts, including: 1) financial facts, 2) geographic facts, 3) child issues, and 4) psychological issues.
Checklist of things to think about –
Sell & Split
- Net proceeds (sale price minus mortgage minus realtor fee minus pro rata taxes minus pro rata insurance minus HOA dues, etc.)
- Terms of sale, listing price, minimum acceptable sale price, etc.
- Selection of a realtor
- Possession of property until it is sold
- Expenses (mortgage, utilities, repairs, taxes, insurance, etc.) to be paid until property is sold
- Obligations of the party in possession until property is sold (pay the mortgage, cooperate with the realtor, pay repair bills, etc.)
- Reimbursement for expenses paid until property is sold (reimburse party who pays repair expenses, taxes, insurance, etc.)
- Veto power re terms of sale (party can veto an offer if the net proceeds will be < $X)
- Court order requiring sale if parties disagree – court appoint a receiver if party fails to abide by the contract terms
- Pro rata payments (property taxes, insurance, etc.) from proceeds of sale
- Payment of liabilities from proceeds (pay debts not related to the property)
- Percentage each party receives from net proceeds – division is not limited to 50-50 (disproportionate division to offset value of other property allocated to a party)
Award To One Party
- What is the value of the House (market value minus mortgage debt)
- Monthly expense (mortgage, taxes, insurance, utilities, estimated maintenance & repairs, etc.)
- Does a party earn enough to pay the ongoing expenses
- Value of the House is ___% of the marital estate – calculate percentage of total marital estate
- If one party receives the House, what assets can be awarded to the other party
- Does a party’s employment require living in a particular place
- Will employment factors require a party to move
- Are there health issues related to where a party lives
- Child issues (school location, friend locations, child health issues/treatment facilities, location of child care services, etc.)
- Distance from other party’s residence (travel time for visits, school, etc.)
- Psychological factors (House = Home, child has his/her own room, a party picked out this particular House, a party decorated the House, location of friends/relatives, etc.)
- Prior experience in joint business (good, bad, none)
- Level of hostility between the parties (level of cooperation between the parties)
- Financial obligations that joint ownership will create (mortgage, taxes, insurance, repairs, maintenance, etc.)
- Time & talent obligations of joint ownership (paperwork/accounting duties, contact/complaints from residents, etc.)
- Percentage each party is to receive from income (disproportionate division of net profit)
There is no universal answer to “What About The House”. Taking a close look at all the facts and issues involved in the case is the proper starting point.