Divorcing Spouses Have Options for What Happens to the Family Home

October 19, 2012

Divorce is a stressful, emotional time for families. The process can be especially trying when spouses discuss how to divide the last physical representation of their marriage -- the family home. Fortunately, divorcing spouses have several options for how to deal with the house that can ease the transition from married to divorced life.

Option One: Keep the Home

Spouses may find that the easiest solution is for one of them to keep the family home. This may be a good option if the housing market is depressed and the home is underwater, meaning selling the home would result in a loss. If one spouse wants to keep the house, the divorce decree may require that spouse to refinance the mortgage in his or her name, if possible, so the other spouse is no longer listed on the mortgage and liable for the debt.

If there is equity in the marital real estate but refinancing is not possible, then the spouse who is keeping the home may want to find a way to pay off the spouse who is relinquishing the home. This would become part of the marital termination agreement. It is advisable to work with an experienced family law attorney to explore options for dividing real estate interests.

Relinquishing all of your interests in the marital realty to your spouse alone is not enough because it only transfers title to the property, but does not address the underlying liability. Sometimes the retaining spouse can arrange an assumption of the loan, releasing the relinquishing spouse's liability on the mortgage note, but it is often difficult to get mortgage lenders to agree to an assumption.

Option Two: Keep the Home Until Kids Have Fledged

Another option for spouses is for one spouse to stay in the home until children have completed school and left the family home. This is ideal for families that wish for children to complete school in the same district.

Spouses choosing this option should stipulate the sale in the marital agreement and/or divorce decree, providing a timeframe based on the time spouses estimate children will graduate high school.

Option Three: Sell the Home

If neither spouse wants to stay in the home, or if the awarding of funds from the sale of the home is stipulated in a marital agreement and/or divorce decree, spouses may agree to sell the home and split the costs associated with selling it. In this case, one spouse typically stays in the home until it is sold and then spouses split the proceeds from the sale after deducting all costs from the sale.

Selling the family home is a good option if spouses are selling in a good market, but the separating couple may lose money selling the home in a depressed market.

Other Property Division Considerations

A spouse should work with a mortgage broker as soon as divorce proceedings begin to make the division process more efficient. Working with a mortgage broker can also help women who have not worked outside the home for years rebuild their credit so the transition from married to single does not make a large impact on their finances.

How Virginia Law Handles Marital Property

In Virginia, property divisions are included in either a signed Marital Settlement Agreement or a Divorce Decree. The state decides how property is divided when spouses cannot settle on a solution themselves. Virginia divides marital property equitably, not equally, meaning that one spouse's share may be larger or smaller than the other spouse's share.

Virginia defines "marital property" by the classification of the source of funds or value that was contributed to the property, which in turn created the equity in it. It is presumed that funds or value that was contributed to a jointly titled property during marriage are "marital." But a party is permitted to trace any "separate" funds or value that was contributed to the marital property that lost its identity in the contribution. So, marital property may turn out to be in fact hybrid part-marital and part-separate property.

Spouses have several options for dividing marital property. To help make the most advantageous decision, contact an experienced family law attorney who can help you weigh your options.

Article provided by Nova Family Law Group
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