When property division in divorce includes a home

April 17, 2013

When property division in divorce includes a home

Article provided by O'Brien & Associates
Visit us at http://www.obrienassociateslaw.com

Among the potentially stressful issues that arise during divorce, couples must divide marital property. If they own a home, it is likely to be one of their most valuable assets and a significant factor in the property division.

Property division

New York is not one of the country's community property states. That means that instead of a 50-50 split, the court will divide a divorcing couple's property equitably. Equitable distribution means a fair division based on all the financial circumstances. A judge could order in one case that one partner receives 60 percent of the property and the other receives 40 percent, for example.

To divide the property the court must first determine what property is marital property -- generally possessions acquired during the marriage, rather than those brought in by an individual at the time of marriage. Monetary assets like bank accounts are taken at face value, but the value of other property must be determined by a method that the court will find acceptable.

Once marital property has been valued and added up, it is then parceled out to each party according to each one's share. For example, if a couple has $100,000 in marital property and the court has awarded 55% to the husband, his share of the marital property is $55,000.

Evaluating the family home

If the family home is to be sold, the parties could agree on splitting the other assets and then dividing the proceeds from the sale of the home. However, if one partner wants to stay in the house, it will be necessary to put a monetary value on this asset, too.

Divorcing parties who want to save money could try to determine the value of the home themselves, possibly using websites like Zillow. However, courts are not likely to view data from websites like this as accurate, and if one spouse presents it in court the other has a solid basis for challenging it. Of course, if the couple agrees to such an evaluation, they may be able to persuade a judge to accept it, too.

A reputable, licensed appraiser will be able to provide the most accurate evaluation of a home. An appraiser charges a fee, though, so parties may be tempted to skip the appraisal and save their money, especially if they recently had the property appraised. However, the real estate market is always changing, so an appraisal that is just a year old could be outdated and inaccurate. It may be a false economy to save money on an appraiser but lose money if property is under- or over-valued for purposes of property division.

A third option is to ask a real estate agent for a comparative market analysis. Realtors may do such an analysis free of charge, especially if they believe the home might end up being sold and they could be engaged to list the property for sale. In a comparative market analysis, similar homes recently sold in the area are compared with the divorcing couple's home to arrive at a likely sale price.

Resolving the issues

Of course who, if anyone, will keep the family home depends on the couple's circumstances. If they have children, the house often goes to the parent who will have primary physical custody. Otherwise, either partner can ask to keep the house, and if both agree, it is a relatively simple matter to incorporate the house into the property division once it has been evaluated. When spouses dispute the property division, the divorce becomes more complicated.

Having an experienced family law attorney as an advocate will be reassuring when concerns like property division come up in a divorce. The attorney can help identify the options that are available and provide valuable advice as to what will work best.