Real Estate Properties And Divorce: 5 Things To Know

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Bridget Houlihan

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Jan 21, 2021

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Divorce can be complicated. At times, it’s not only the couple who’ll undergo the process but the entire household. It can be emotionally and mentally exhausting for all involved. 

You’ll also need to decide on property division and who gets what. Couples can decide what to do when it comes to the division of assets. The following are facts that can help you navigate this process.  

Valuation And Division Of Property 

When divorce reaches the Court, the process will include the division of the home’s equity. The equity must be equally divided between the two parties. But in reality, some complications can cause an uneven division. Some factors include state laws, funds placed into a separate property owned by the other party, and how the assets were divided.   

The house must undergo valuation to determine equity. If there are existing mortgage balances and other debts, the amount will be deducted from the equity amount. It’s essential to strive for an updated evaluation. That means you need to work with an appraiser, hire an agent, or another professional who’ll analyze the property's actual value. If you’re undergoing divorce and need information to protect your assets, head over to sites like https://blakeharrislaw.com/blog/how-to-protect-assets-from-divorce.

Why Divorcing Couples Should Sell The House 

Not all divorces are messy. Some couples can deal with the process amicably. They’re willing to discuss various areas of the process peacefully and how to deal with these in the best possible way.  

But property division can have difficulties, mainly if both parties contributed significantly to the home's purchase and maintenance. Sometimes, one party has given more to the property, but the other still wants an equal share. The Court must decide what’s best if both parties cannot compromise.   

If you agree with your spouse, that would be the best course to avoid a court decision. Selling the home is sometimes the most practical way to divide the property once it’s sold because it eliminates the need to find the property's future.  

Preparation On Co-Ownership Of Property 

Some former spouses might decide to co-own a property, and it’s best to ensure that all ancillary expenses have been paid. They must still have a civil discussion on who pays for mortgages, property taxes, and other fees while the property is under both names. It also includes maintenance and repairs.  

One party could be in charge of most of the expenses if they dwell in the property, and the other, who also stands to benefit from the upkeep of the property, can still contribute financially. When the house is sold, they can share its proceeds.  

Another consideration is that if both parties remain co-owners of the property but are living separately or will be leaving home, it should be clearly stated in the Property Settlement Agreement. Failure to do so risks missing important real estate tax laws such as being excluded from paying capital gains tax.  

Questions To Ask If You Want To Keep The House 

If you’re in a divorce and still want to keep the house, there are certain variables that you need to consider. You’ll need to first think about how it’ll benefit you.  

Ask yourself these questions before deciding that the house should belong to you: 

  • Am I financially stable enough to maintain a home's regular maintenance and repay the mortgage loan? 
  • Is the house valuable enough sentimentally because it has been with the family for decades, and I’d feel a tremendous loss if I can’t have it? 
  • Do I have a civil or good enough relationship with my soon-to-be-former spouse? 
  • Will it be advantageous to keep it as a hub for the children in transition and as they stay in school? 
  • Have I done all my due diligence to decide that the home is worth keeping? 

Once you have the answers, it’ll help you decide whether you need the house. There might be more things occupying your mind, but it’s better to get this matter solved to make it easier for you both.  

Keep Rule 411 In Mind 

If you’re wondering if your soon-to-be spouse can sell all your assets that’ll leave you with little to nothing, the Court will probably not allow this due to the Supplemental Probate and Family Court Rule 411 or Rule 411. It’s also known as the Automatic Restraining Order.  

Rule 411 automatically goes into effect once a party files for divorce. The person who lodged the divorce is the Plaintiff. At this point, both parties cannot sell their assets. In the divorce process, they’ll receive a copy of Rule 411 issued by the Court that won’t allow them to liquidate assets once they’re serving the complaint for divorce and summons.  

Assets include real property such as the primary residence, vacation home, timeshares, and rental estate. Personal property is also under the 411 Rule that consists of the car, bank accounts, life insurance policies, business assets, and more.   

In Conclusion 

Couples undergoing a divorce might still need to work together, especially when they must divide real estate assets. But there are different situations in divorces. Some want to divide the property, while others want to keep the house. Some rules apply for the protection of both parties, such as prohibiting both to sell assets once the divorce is filed. Nevertheless, it’s worth seeking the advice of a divorce lawyer for the best course of action in your situation.

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