Keeping The Marital Home

What are some of the most common questions about the marital home that I get from my client getting divorced?

Question 1: Should I Sell My Home?

Divorce will shake your very foundations because of the massive changes it brings, and the resultant stress, especially when considering whether to sell your home, your “safe place,” your “security,” and what you may view as your children’s stability. So, before I have this discussion my client, I encourage him or her to clear her mind of the current stress, to put aside any nagging fears, and to focus her inner vision on her future five years out, free from the pain of the divorce. This is a better place from which to make major decisions.

Then I tell my clients to consider the following:

  • Does it make sense to own the home jointly with your soon-to-be-ex? Rarely do I advise this. Cut the ties.
  • Can you afford the mortgage and property taxes on your own? These days, it is rare that my client can agree to this, even if he was the breadwinner. It is simply more expensive to run two households than it is one.
  • Can you also afford the rest of the upkeep? The electricity, the pool, the landscaping…. And, more to the point, do you even want to? This “break,” arguably a fresh start, is an opportunity to simplify your life.
  • How long would you live there if you did keep it? Just long enough for the kids to graduate from high school? Consider the alternatives. Isn’t there some place in the same school district more affordable to which you might be able to relocate?
  • What or how much would you give up to keep it? Remember, if you get the home, and it has any equity, you’ll likely have to trade your spouse something for that value. (See Question #2, below.)

If neither of you can afford to buy out the other, you will probably sell it. Do this before news of your divorce gets out; otherwise, potential buyers will assume that you and your spouse are desperate, and that your offer to sell is a liquidation sale. In fact, you should still stage the home with the two of you together: photos with both of you in the picture, both spouses’ clothes in the closet, etc.

Question 2: Should I Buy Out My Spouse?

Buying out your spouse’s equity interest is one way of dealing with the family home in your divorce, assuming you can afford it and he is willing for you to stay. If you’re fighting over timesharing, whoever gets the house is arguably in the better position to get majority timesharing; some believe that enabling the kids to remain in the home, ensuring at least that amount of stability, is in their best interests. But these days, that’s not always an option.

What’s the Catch?

Another advantage of one of you buying out the other is that you need not sell the house if market conditions are not good.

However, I check in with my past clients from time-to-time. After all, we usually became good friends on their divorce journeys and I like to know how the future that they envisioned panned out for them. And I noticed a trend; those clients who had ignored my advice to let the house go, almost always regretted that decision. I vividly remember one client in particular admitting, “I wish I had been able to hear you when you suggested I let him have the house. We spent so much time in court convincing the judge to give it me, and, afterward, I ended up letting it go anyway. As you said, I couldn’t afford it, and, ultimately, I didn’t want it and the kids didn’t care. When I sold it, we moved into a townhouse with much lower payments and less upkeep, and I’m so much happier!

So be careful what you wish for. And be sure to do the math, to make sure that you can afford to, not just buy him out, but continue making the mortgage payments and paying for the maintenance.

Question 3: Is it Possible to Defer a Sale?

Assuming that neither of you can buy out the other, if you and your ex-spouse agree, you can hold off on selling the home so that your children can live there until they’re mature enough to head out on their own. But, if you are both on the mortgage, then the spouse who relocated is stuck on the home loan until the other is able to refinance into his/her own name, which means the relocated spouse likely won’t qualify for a mortgage on a new home.

Question 4: What About the Mortgage?

It’s easy to get your name off the deed (a quit claim deed from you both to the spouse keeping the home will suffice), but not off the mortgage. The spouse keeping the home must qualify to refinance the home into his/her own name. If not, it might make it harder for you to qualify for a new mortgage when applying for a loan to buy a new home.

If the spouse who keeps the house isn’t able to make the payments, then both spouses will find that their credit scores are negatively affected.

Question 5: Can I Buy a New House During My Divorce?

Don’t. And don’t renovate the family home while your divorce is ongoing either. Why not? Your spouse can claim an interest in your new home if you purchase it while you’re still married. And before performing any major repairs or renovations, make sure you have a written agreement with your spouse that clearly states if, how, and when the spouse footing the bill will be reimbursed.

Don’t Stress

Deciding whether to keep your family home is a tough decision. Your family’s situation and finances will ultimately guide your decision. In these situations, don’t stress. It may be best to have a lawyer handle the division of your family home. An attorney not only helps carry out the division of your home but can also help reduce conflict between both parties. Depending on the option you and your spouse choose, your attorney can help you remove responsibility from one spouse, or simply sell and split the profits.

If you’ve decided to end the negative narrative loop and build a new life, don’t hesitate to reach out to us at Open Palm Law. We are committed to helping your family heal and reach resolutions, regardless of which process you choose to take you there.

Learn more about collaborative divorce. Follow Open Palm Law.

Need advice now? Contact Joryn!

About this week’s author, Joryn Jenkins.

Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed in the United States Supreme Court upon those who have provided exceptional leadership in the American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.

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