First of all, it is important to make a distinction between cases handled by a judge in court and cases in which the two spouses can agree on the terms of equity division on their own, before the case gets before the court.
In a divorce case, the couple has the opportunity to determine the terms of the division of their assets, including the division of their marital residence, in settlement negotiations. It is a tremendous benefit to make these determinations in the settlement negotiations — before the case gets before a judge — whenever possible. When the case gets before the judge, you hand over significant control over the process and the outcome of your case.
At The Siemon Law Firm, we work diligently for our clients in settlement negotiations to make sure they get an equitable deal when it comes to dividing their marital residences.
When a case does get before a judge in court, the judge has a few options regarding the house:
- Liquidation: The judge can have the house sold outright and the money split between the parties.
- One party keeps the house: It is also common for one party to keep the house and buy out the other party’s equity.
- Other creative solutions: In some recent cases, the kids stay in the house and the parents take turns staying in the home with the kids. There are other creative solutions as well. In most cases, these creative solutions are more likely to come out through settlement negotiations than in the courtroom.
What Factors Will the Judge Consider?
The judge can consider many factors when looking at division of marital residence, including:
- Can either party afford the house? If either party or both parties want to keep the house, the first consideration is whether either party can afford the mortgage and taxes necessary to keep the house. If neither party can afford it, it won’t make sense for anyone to keep it.
- How much equity is in the house? The secondary factor for a party keeping the house is whether that party can afford to buy out the other party’s equity in the house. If not, there is likely no way a judge would allow one party to keep the house, as it would not be an equitable arrangement.
- How much debt is on the house and in whose name is the debt? It would not be equitable for one party to retain sole ownership of a home if the other party is obligated on the debt. If it is possible to refinance and remove one of the parties, the other party could keep the house, but if this isn’t possible, one-party ownership is unlikely.
In some cases, one party perhaps could afford to keep the house, but this isn’t definite. In these cases, a judge could order a refinance within a set amount of time. Then, if the refinance hasn’t happened in that time, the judge could order the specifics of the realtor, the times of showing the house, the terms of the sale, etc. The judge could take complete control over the sale of the house.
It is important to keep in mind the degree of control a judge can take once these matters get to the courtroom. Most people do not want to hand over this much control, which is why we always look to settle these cases between the parties themselves in settlement negotiations whenever possible.
The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.
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