In divorce people regularly fight over who will keep the marital residence. Sometimes people want to keep the house for sentimental reasons. Some want to keep the house for the kids. And still, some want to keep the house as an investment. Maybe your house is close to work or in a neighborhood filled with your best friends. Whatever your reason for wanting to keep the house, please consider the five areas below before making your final decision to retain the marital residence.
In order to retain the marital residence, you will need to pay your ex for his or her share of the equity in the marital residence. The equity is determined by subtracting the estimated cost of the sale of the residence and the balance of the mortgage, home equity line of credit, and any other debt or liability associated with the residence from the fair market value.
The fair market value is what a real estate appraiser says the house is worth. A real estate appraiser is different from a real estate agent and different from the various websites that estimate resale value. You will need to hire an appraiser to determine the value of the home and prepare a report for the court.
There are different options to buy out your ex’s share of the house. Some options are that you can use the cash you have in a bank account, offset the value with an asset that your ex is retaining, withdraw the funds from the equity when you refinance, or make monthly payments to your ex. Sometimes you can craft a plan using a combination of these options.
If the house and mortgage are in a joint name, you will need to refinance the mortgage into your sole name to retain the residence. In many instances, if you fail to refinance the house in a timely manner, there will be a provision in your order or agreement that requires the sale of the residence.
The refinance fully absolves your ex from the responsibility of the mortgage or other debt associated with the residence. The agreement is not enough to absolve your ex’s responsibility to the financial institution or another third party. Only having your ex’s name officially removed from the debt can accomplish this goal.
When you take sole ownership of the house, you also take on the responsibility for the house. You will now be responsible for the upkeep, which includes yard maintenance, cleaning, and house repairs. If you are not going to perform these duties yourself, you will need to consider whether you need to hire someone or if friends and family are able to assist with the duties.
If you are hiring someone, you should consider if the cost associated with the maintenance and upkeep is in your budget.
Many houses now have apps that control various appliances and utilities. You need to transfer all of these into your name and remove your ex.
In cases of domestic violence, your ex could still harass and torment you by utilizing these apps. They could control the temperature in your house if you have a smart thermostat. Your ex could monitor you through security cameras, doorbell cameras, or garage door apps that send alerts when opened.
Even when domestic violence is not a concern, setting boundaries is important. Your ex does not need to know who is entering your house or when you are leaving your house.
If you cannot remove your ex from all the smart features in the house, you might want to consider whether you still want to stay.
It is best to make sure that your ex no longer has access to the house. It is recommended that you change the locks on the house, change the garage code, and update the security system. Do not forget to collect your ex’s spare keys and garage door opener as an added safety measure. If the garage door opener is programmed into your vehicles or opened through an app on your phones, you should make sure you remove your ex’s access to these smart features.
If you wish to retain the marital residence, start making plans for making the home yours. This includes removing your ex’s access to smart features and removing features that he or she picked out that you hate. This will also include a plan for maintenance and upkeep.
Work with your lawyer to make sure your agreement or proposed court order is properly drafted to address your retention of the asset. Your lawyer can also help you determine how to finance the buyout from your ex.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Pittsburgh Family Law Attorney Julie focuses her practice on family law matters including divorce, child custody, support, asset division, prenuptial agreements, and international custody. Julie also has experience in family law...
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