One of the most common questions that divorce attorneys hear is: “What will happen to our house?” While courts do have the power to order the sale of the marital residence, what happens to the house usually is left up to the parties themselves. Typically, the house situation has a lot to do with whether there are children residing in the home and whether one party can afford to buy out the interest of the other, either through cash or by offsetting the equity (or debt) with other assets.
As we mentioned, the first consideration is usually whether minor children are residing in the home. If there are children in the house and it has been their home for a significant period of time, the courts are often reluctant to order the property sold and the children uprooted. Usually, the Court will give the party residing in the house a chance to come up with a plan to make the mortgage payments and retain the property.
Judges prefer to have the parties themselves come up with a plan regarding the house than have to order the home sold. Even if the parties refuse to decide amongst themselves, a judge may still decide no to order a sale until the children are grown and gone. The court is also able to offset the equity in the house against the value of other assets (including retirement funds, stocks, bonds, etc.).
If there are no minor children living at home the sale of the house becomes more likely. This is doubly true if the equity in the house represents the primary marital assets of the couple. If there are other assets, they can often be used to buy out the value of the marital home if one party is adamant about not selling. Though judges usually don’t have a problem allowing one party to “buy out” the other, this can be tricky if not impossible when there are limited financial resources.
If a “buy out” does occur, the value of the home must first be determined. Certified real estate appraisers are often used to arrive at a fair number. The appraisals are then coupled with the rest of the couple’s financial picture to determine each spouse’s interest in the home.
Given the current real estate market many couples are reluctant to sell and take a loss. Even when they do agree to sell the house the process can take a significant amount of time and no court order can speed that along.
If you have questions about a divorce proceeding and would like a divorce attorney to assist you in the matter, call us at (904) 685-1200.
Source: “Dividing Real Estate in Divorce – What Happens to the House?,” by Maury D. Beaulier, published at HG.org.