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Splitting the Nest: Common Issues with the Marital Home in Divorces

            Other than perhaps a pension or business, the home is the most complicated asset to divide in most divorces.  Understanding your rights, responsibilities and common issues associated with the home is crucial in ensuring that you get your fair share and don’t end up with unintended liabilities down the road.

Stay in the Home!

Step one is remaining in the marital home while the case is pending if at all possible.  We have written extensively on this subject in other blogs.  In short, you want to be in control of such a major asset which is also subject to major debt.  Until it is decided who will get the house or how or when it will be sold, you will want to ensure that the bills are being paid, the property is being maintained and that the home is made available to be marketed. It is not uncommon for divorces to last six months to a year, and it is rarely in your best interest to be “on the outside looking in” while this process plays out.  The issue of how long both of you can remain in the home is one of the things to be negotiated in the final settlement.

If not, lay the ground rules

If you do end up separating, it is important to have a clearly drafted order in place as to how the bills are to be paid and what access the party who has moved out will continue to have to the home until the case is completed.

What’s it Worth?

In deciding whether to keep the home, be bought out by your wife, or to sell the home and split the proceeds, the first issue is what is the value of the home.  While online resources and local realtors can give you some idea of the fair market value, there is no substitute for a certified and reputable real estate appraiser.   With appraisals, you will want to ensure your expert is fully aware of the condition of the home and any issues which may impact its value.

What do you Owe?

Of course, the value of the home is only one part of the equation in determining the equity to be divided.  You and your attorney need to ensure that all liens and other debts associated with the property are known including the mortgage, home equity loans, mechanics liens (i.e. for work done on windows or roofs, etc.), city assessments, unpaid neighborhood association fees or even unpaid water bills. 

If you want to keep the home, you will be assuming all of these debts and, to the extent they are in both parties’ names, will need to refinance.  If you are willing to let your wife keep the home, you will want to ensure that she refinances or otherwise removes you as a liable party to the debts.  As with any debt, signing a quit claim deed or even having her assume debts in the judgment does not get you off the hook with the creditors.  Not only will your credit be at risk, but it will also be tied up when you try to obtain a loan down the road.

Terms of Sale

If there is a sale, the judgment needs to specify who will choose the realtor and what the terms of the listing will be.  How will bills be paid while the house is on the market?  Who determines if an offer is to be accepted?   Who pays for maintenance and major repairs while the home is listed for sale?  The more specific your court order is on these issues, the less likely you will end up in court later.

Who gets the deductions?

Whether there is a sale or one party is keeping  the home,  your agreement will need to spell out who gets to claim the deductions for real estate taxes and mortgage interest in the year of divorce and until the home is sold.  If your mortgage company holds real estate taxes and insurance premiums in escrow for you, those escrowed funds must be considered as well.

These are just a few issues and considerations in dealing with your home.  Simply writing in a judgment language such as “wife is awarded the marital home subject to the debt associated with it” will leave many issues unresolved.  Getting advice early and ensuring that you have full information to address these issues will ensure a fair deal with the home you’ve worked so hard to obtain.

About ADAM (American Divorce Association for Men)

The American Divorce Association for Men (ADAM) is a group of highly qualified attorneys who advocate for men’s rights in divorce, child custody and parenting time, paternity, support, property settlement, post judgment modifications, and other family law matters. Since 1988, ADAM has been aggressive, diligent, and uncompromising when representing their clients. A team of compassionate and skilled family law attorneys, ADAM is dedicated to being Michigan’s leading divorce attorneys for men

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