When it comes to marital assets, the biggest and most important to many people is their home. This makes sense. For the vast majority of married couples, a home represents the biggest financial investment of their adult lives. You and your spouse have likely spent many years building both financial and sweat equity in your home.
Now that your marriage is moving toward divorce, you’re increasingly worried about whether you’ll have to move out of your home. You have good reason for concern. Asset division in contentious divorces is notoriously hard to predict accurately. Looking carefully at a number of factors can help you explore what is likely to happen with your home.
Are there any marital children?
Do you and your spouse have children? If so, are they of school age? These factors can have a big impact on the decision regarding your home. In order to reduce the impact of the divorce on the children, the courts could decide to let them and the primary custodial parent stay in the marital home. That allows the children to stay in the space they know and remain in the same school district.
When that happens, typically the house must get refinanced to remove the non-custodial parent from the mortgage. The spouse remaining in the home will probably need to cash out a substantial amount of the equity in the house to make the division of assets fair. If there are substantial other assets, their division could offset the loss of equity for the non-custodial spouse.
Do either of you have a familial claim to the property?
In cases where there are no children but both spouses hope to retain the home, a previous claim to the property could impact the court’s decision. If you purchased your home from family members or even inherited it, that could have a profound impact on how the courts rule.
If neither of you have a previous claim to the home but you both want it, the courts could choose to assign it to one spouse or even rule that you need to sell it and split the sale proceeds as part of your asset division process.
Are you having financial or mortgage issues?
Is your mortgage underwater, meaning you owe more than the assessed value of your home? Have you retired or lost a job, making your monthly payments difficult? In cases where neither spouse can afford the home on their own, the best option for everyone is often to sell the home.
Short sales, where a lender takes a loss on the value of the home, can be complicated and take a long time. Be sure to provide the courts with information about your home’s value and mortgage amount if you have very little equity or a mortgage that is underwater. It may simply be time to start fresh in a new home in this situation.