Making The Deal Count

Fighting Over The House? Tips For Dividing Real Estate During A Divorce

22 December 2020

Trix Van Zee

Even divorces that begin on amicable footing can quickly deteriorate when questions arise over the division of marital property. One of the most contentious divorce battles often centers around the family home. In addition to the market value, ownership of the family home is often contested during a divorce due to sentimental feelings for the property or a need for the security that it can offer to one of the former spouses. 

If you are in the process of divorcing your spouse and want to learn more about how real property might be divided during the legal process, this information can help. 

Mutually agreeable terms are preferable

Divorce laws, including those surrounding the division of property, vary from state to state, so it is important that divorcing couples obtain information about their state's divorce laws before beginning any type of negotiation related to their marital situation. With that said, there are some common factors that apply to the division of real estate during a divorce in most states. 

One factor will be if the couple is able to work out a mutually agreeable division on their own or through a moderator. While a mutual agreement is preferable because it creates and fosters a desire for each spouse to treat the other equitably and respectfully, it is not typical in most divorces, especially those in which emotions run high or where abuse or mistrust is a factor. 

Pre-marriage ownership can be a factor

When attempting to legally divide real estate during a divorce, a home or property owned by one party prior to the divorce may be considered separate from the negotiations, depending on state law. Property acquired during the marriage, on the other hand, is usually seen as community property and is likely to be subject to division as part of the divorce proceedings. 

Real estate mortgage debt

In many divorce cases, negotiations between spouses to determine who should get the familial home are often complicated by existing mortgage debt. When a mortgage encumbers real property, the divorce negotiation process must also factor in whether or not the home will be affordable for the spouse who wishes to be granted ownership of it.

If not, divorcing spouses may need to agree to sell the home as part of the divorce agreement. Proceeds from the sale of the family home, if applicable, can then be awarded through additional negotiations. 

Divorces are never simple, and the need to divide real estate makes them even more contentious. Before taking part in any divorce negotiation that involves the division of real estate, speaking confidentially with an attorney who is well versed in real estate law is the best way to ensure that the final divorce agreement will be a fair and equitable one. 

Contact a divorce lawyer near you to learn more.

Share

Search