Susan Rossi Cook, Attorney and Mediator

The rules of real estate in a divorce

It is not uncommon for divorce settlement negotiations to become deadlocked over a marital residence. When both spouses wish to keep the real estate, the claws can come out with a vengeance. There are a few ways in which real estate ownership can be determined or decided by a Judge.

The very first question that will be asked of a divorcing couple is when was the property purchased, and who purchased it. If the property was owned prior to the marriage by one spouse, it may be considered a premarital asset and still belong exclusively to that spouse after the divorce if it was not used for marital purposes. This means that the couple did not live in the home after marriage, nor did they jointly receive rental or any other income from the property. In other words, it was not the marital home, and rental income was not deposited in any kind of joint account. If the spouses lived in the home and it became their marital residence, then it is considered a marital asset and should be split between the parties in some manner. The same is true for property purchased after a marriage.

If neither spouse wishes to keep real estate, and can remain civil with each other in negotiations, property may be sold with the proceeds divided between the parties. Issues can still arise regarding how much of the proceeds each party receives. If spouses cannot agree to these numbers on their own, a judge will make a determination based on factors such as how much each contributed to the purchase, as well as how much each contributed to monthly mortgage payments. On the other hand, if both spouses want the house, a judge must decide who gets to keep the home, and how much he or she will need to pay to "buy out" the other party. Other valuable assets can be substituted for cash in this scenario.

No matter which situation a divorcing spouse finds themselves in, they should never go into it alone. The advice of an experienced divorce attorney is vital to making sure everyone walks away with a fair deal.

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Susan Rossi Cook, Attorney and Mediator


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