One of the most important assets—and the one most likely to directly affect your life—is the marital home or mortgage. This is typically what the couple invested the most amount of money in and has become a home to each person and children they may share. When going through a divorce, it can be difficult to work out what to do with the property, especially if one or both spouses are adamant about remaining in the home.
For financial reasons, it is most often recommended to sell the marital home and split the profit made from the sale. This is the easiest way to split the responsibility of the mortgage and separate your interests in the home to allow both spouses to move on financially and emotionally. A mortgage company will hold both spouses fully liable if the mortgage costs are not covered each month. If one spouse prefers to remain in the home, he or she would have to take over the mortgage, satisfy the remaining balance owed, and essentially buy the other spouse out of his or her share in the property. This would require qualifying to refinance the home with just the income of the spouse who wishes to remain in the home to ensure that he or she can cover the costs of the mortgage alone. If this is completed, this would most likely require the transfer of title of the property from the parties as joint owners to the party as a sole title holder. However, in many cases, one spouse is unable to take on the mortgage of the marital home alone.
Whether or not the deed to the home is in one spouse’s name prior to the divorce does not matter. The spouse whose name the deed or mortgage is under does not automatically receive the rights to sell or remain in the home. Real property obtained during a marriage will be included in the equitable distribution process. Equitable distribution is a term that describes the court’s process of dividing marital property equally in the event of a divorce. A pre- or post-nuptial agreement that outlines the couple’s wishes for the property in a divorce can make this process easier and less time-consuming. However, in instances where the spouses do not agree, the matter will be brought to a judge who will consider the needs of each spouse before deciding who will receive which marital property.
If both spouses want to remain in the home and it becomes a legal issue, the court may intervene and award the home to the spouse with custody of the children, keeping the best interests of the children in mind in an attempt to make the process easier on them. This typically only occurs in situations where the children are teenagers and the parties can afford to remain in the home. If this is the case, one spouse being awarded exclusive use and occupancy of the marital residence prevents the children from having to leave their home and potentially their school district, which could have negative effects on their grades and overall well-being. The court may also decide to order the home be sold and the profits split between spouses, or in the case where children are involved, a judge may decide to delay the sale of the home until the child graduates high school.
Deciding what to do with a marital home during a divorce can be an emotionally and financially taxing process. It is important to consult with an experienced family attorney to protect your interests in the property and help you achieve your desired outcome, whether that be to sell or remain in the home. Call the New York divorce lawyer Heather A. Fig at office for more information or to schedule a consultation.