Who Gets the House: Divorce and Your Assets

By: Jerry Clifford

People don't like to think of the end of something, but with divorce rates higher than ever before in history, the reality that you and your spouse might split some day is a likely one. How you divide the assets can be complicated.

One of the largest assets couples often accumulate during a marriage is their home. Whether a spouse wants to sell the house or keep it after a divorce is usually an emotional issue. No matter what, you will need to determine how much it is worth, and who it belongs to.

If the home was purchased by one partner before the marriage, it may be considered non-marital equity, and therefore belong only to that one person. However, if there have been re-mortgages since the marriage, then the non-marital equity clause may be void and the home may be considered the asset of both parties. This is when an accurate assessment needs to take place. If neither party wants the home, it can be sold and the assets divided. However it is a complicated process to sell together while undergoing a divorce. Greed or hostility on the part of one or both parties may make it very hard to settle on an offer. On the other hand, an ex-couple might be relieved to get any offer, just to get the situation over with.

If one party wants to keep the house, they need to be sure what its value is so that the division of assets is equal and fair. There have been cases wherein a spouse with an emotional attachment to the marital home accepts it in a marriage settlement in lieu of a much more economically valuable settlement. So maintaining objectivity is very important when determining who gets what.

However, there are some very real reasons why a person should stay in their home, for example if there are young children in the family for whom a move would be stressful. However, getting the house should not replace another more valuable offer, but be one part of an equal division of assets.

When getting an assessment, don't rely on your annual tax assessment. These tend to be low assessments, and a comparative market analysis will be far more accurate. If there is any concern, it may be wise to conduct any relevant inspections on the home, even if you aren't planning on selling. This will reveal any problems that may reduce the value, and will allow for a more accurate assessment.

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