Divorce:

Homes

The treatment of the family house in divorce cases will vary from case to case; if a couple can agree what to do with it, the court will almost always abide by their decision, though if they cannot, they court will make the decision. 

If a home (house, condo, co-op) is owned by the couple and they have children, if they can afford to keep it, it will probably go to the spouse who is determined to be the primary caregiver, for the sake of the children. 

In the event that the couple cannot afford to keep the house, it may be sold and the profits will either be divided or given to one spouse.  The division, obviously, occurs after the mortgage and cost of sale are paid off. 

There is also an in-between approach: The primary caregiver has the right to live in the house until the youngest graduates from high school, at which time he or she will either buy out the other spouse’s share and own the home exclusively, or sell it and the profit is divided between them.

There is another possible variation to any of these arrangements: one spouse is given a set period of time (usually thirty days) during which he or she can buy the house.  If the first spouse does not purchase the house (for whatever reason) then the second spouse is given a chance.  If the second spouse also fails to buy the house, then it is sold and the proceeds are divided. 

In the event that that one party will be the sole occupant of the house following the divorce, arrangements need to be made for the various payments associated with owning a home.  One usual arrangement is for the party occupying the home to pay the mortgage, property taxes, utilities, and routine repairs. In the event that non-home occupying spouse keeps some interest in the house (for example, the right to share in the proceeds when the house is eventually), both parties might share in the costs of major repairs. These might be defined by cost (for example, those over $200) or by nature (for example, structural repairs, roof repairs, and the replacement of appliances).  The interest of the non-home occupying spouse may also be set at a fixed dollar amount or according to the percent increase in the value of the house from the date of the divorce to the date of sale of the house.

It should be noted that when the entire interest in the house is given to one spouse and that spouse is liable for future mortgage payments, this does not mean the spouse who moves out is no longer potentially liable for the mortgage. This is because banks and other lending institutions do not like to give up the security of having multiple people responsible for the loan. Consequently, the spouse who does not occupy the house is responsible for the loan in the event the spouse who does occupy the house fails to pay the mortgage.

There is a legal remedy for this, called a “hold harmless provision.” This means that if the spouse who moved out is required to pay a loan that the other spouse was supposed to pay, then the spouse who moved out can legally collect the loss from the spouse who has the house; that is, the spouse who moved out can sue his or her former partner for any lost funds. Consequently, if the house has a positive net worth, the court could order the house sold in order to pay back the spouse who moved out.

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