Who Gets the House? How to Value and Divide the Marital Home in the Divorce:
Oftentimes, the most valuable asset a married couple has is their home. Not only is it valuable in terms of worth to the parties, but there is usually sentimental value to one or both of the spouses in a divorce.
Who Gets the House?
Sometimes spouses have determined who will keep the home before even filing for divorce. One spouse may have a better ability to maintain and afford the marital home. Or maybe the other spouse will be the primary parent to the children and wants to keep the kids in their home. There are many reasons why a person would want to keep (or not keep) the home.
If the parties cannot agree as to who will keep the house, then a Judge will decide whether one party gets to keep the home, or whether the house must be put up for sale. A Judge can decide at a temporary orders hearing which party has temporary possession of the home. At a permanent orders hearing, the Judge will decide which spouse will keep the home permanently.
If you cannot reach an agreement with your spouse about who keeps the house, it may be advisable to stay in the home until you go to Court. Although nothing in the law says that the person living in the house at the time of the hearing will be the person to get it on a permanent basis, this often is the case in reality. If you want to keep the house, but do not think it is possible to live with your spouse even on a temporary basis, you should consult with an attorney before moving out to discuss your options.
How to Value the Home?
The Judge, when dividing property, must affix values to everything, including the marital home. There are several ways to determine the value of the home, although some ways are more accurate than others.
Some spouses determine the value of their home by looking at online sites that give values to real estate. For example, Zillow.com provides values on the majority of homes in Colorado. Zillow can be accurate when homes in a certain neighborhood are similar and there are multiple sales close to the time valuation is necessary. It becomes less reliable when there is a great variance in size and condition of houses in a given neighborhood. Zillow may be a good place to start before researching other avenues to determine value.
Another “free” resource to getting the value of your home would be to ask a real estate agent to do a market analysis for you. He or she would look at your home, the comparisons in your neighborhood, and give you an analysis of what your home may be worth. This is likely to be more accurate than Zillow.
I would caution against using the value listed on the tax assessment of your property, especially if you will not be keeping the home. The values listed are usually much lower than what the house could actually sell for if put on the market.
Finally, value can be determined by purchasing an appraisal. Appraisals can cost between $400 and $800, but are generally the most accepted way to determine the value of a home.
Dividing the Home
After it is determined who will keep the house, and how much the house is worth, the Judge will have to decide how to split the value of the home. If the house has $40,000 of equity in it, the Judge may award another item of value of $40,000 to the person not keeping the home. Or, the Court may have the person keeping the house take on more debt to make the property division more equitable.
The Judge may also require that one party refinance the house, and as part of the refinance, pay an equitable share to the party not keeping the house. The Court will almost always require the spouse keeping the house to refinance it so the other spouse’s name is no longer attached to the loan. Parties generally have six months to a year to complete the refinance.
Selling the Home
Sometimes parties agree, or the Judge requires, that a home be sold. If this is the case, usually, parties will share any net profit made from the sale of the house. Selling a home can be difficult in a messy divorce because there are many things to agree upon, including, who the realtor will be, what to list the house for, how soon to drop the price, what to fix/repair in the home to make it saleable, who is going to live in it temporarily, and how long to leave the home on the market. It requires cooperation of the parties, dealing with a realtor together, making small changes along the way, and signing documents together.
It is advisable to try and work some of these details out with your spouse in advance. It can get expensive to leave all these decisions for attorneys to litigate in Court.
Do Your Research
Before deciding whether or not you want to keep the house, do some research to determine whether it is a good move for you. Is your mortgage low compared to what it would cost to purchase a similar home? Do you want to remain in the neighborhood so the kids can go to the same school? Can you really afford to keep the house, including the mortgage, HOA fees, property upkeep, and taxes once you and your spouse are no longer sharing money? Is your house in an area where it would be easy to sell if necessary? Do you really need all the space provided by your home? Can you refinance the home without your spouse’s income?
The question of who keeps the house is oftentimes the central issue of contested divorce. Before making any decisions, you should consult with an attorney to determine what your options are on a temporary and permanent basis.
