During divorce proceedings, real estate is often a primary focus as you decide what to do about your shared home. For many couples, a home is their greatest asset. It also may hold sentimental value to both sides. Questions of homeownership — like the division of assets in a sale or deciding who gets to keep the home itself — are complicated and can get testy. If you can't come to an agreement, the court may step in, so it's best to have lawyers on your side.
In many cases, due to financial, legal, or personal reasons, it makes the most sense to sell the house during divorce. But you can always continue to own the home jointly with your ex-spouse, or buy their share of the property so you're the sole owner.
Most divorces involving a property dispute play out in one of the three ways:
Who gets the house depends on each individual divorce scenario, which makes it tricky to navigate. Each of the situations highlighted above may play out in different ways depending on the cooperative or acrimonious nature of the divorcing couple. That said, there are a few options to consider when you’re negotiating the future of a house.
If you and your spouse share multiple, large assets — like a second home (in addition to the main home), an art collection, a shared stock portfolio — you might just agree to divvy everything up equally. That way, you each take ownership of assets worth about the same amount.
Dividing large assets can be a quicker way to finalize a divorce since you won’t have to wait for a property sale or endure a long negotiation about who gets a larger share of a home. You’ll still have to negotiate the value of each large asset to land on an equitable agreement, but you won’t have to deal with the stress of selling a home while going through a divorce.
The division of property can between during a divorce can be difficult to navigate, especially in community property states where marital assets are jointly owned by both spouses, regardless of who paid for it. But if you can come to an amicable agreement together, it'll make things go more smoothly.
It's easy to split up each spouse's separate property, but deciding who owns the assets acquired during the course of the marriage can get trickier, especially if both parties lay a claim to it. Having a family law attorney can be useful in determining who owns what and how to divide it.
If you or your partner doesn't want to sell, either of you can buy out the other person. The buyout may be for more or less than half of the market value of the home, depending on each party’s income, financial contributions to the property, and the home’s earning potential. If you’re not interested in a back-and-forth debate, you can agree to settle for half of the home’s market value.
Bear in mind if you're doing a buyout, you must have access to enough cash that isn’t subject to the rest of the divorce proceedings, and be able to afford the mortgage on a single income. (In some cases, however, you can roll a buyout into a larger home refinancing.)
In an amicable divorce, a couple can agree to a co-ownership plan. In this scenario, you’ll agree on how mortgage payments will be split, when they’ll be paid each month, and how to distribute the proceeds of a sale should it happen down the line. Children can stay in the home and nobody has to worry about dipping into savings to buy out the other person.
In this scenario, you’re still financially tethered to your former spouse. Even if you’re divorced, late payments on a co-owned home will affect both peoples’ credit scores.
Also, in the event of a sale, a homeowner who doesn’t live in a home as a primary residence for at least two of the previous five years won't be able to claim the Home Sale Tax Exclusion. They’ll be facing full capital gains on any appreciation in a sale, which could be a sticking point, unless you agree on a sale timetable that gets both spouses the tax exclusion.
You don’t have to sell your house during a divorce, but there are a number of reasons why selling may be the better choice. Despite the stress and headaches of selling during a divorce, it may be the preferred option for a number of reasons.
When you bought the house together, you may have had two incomes to cover the expenses. If either party can’t afford the mortgage, insurance, property taxes, and maintenance on a single income, selling the house may be the most viable option. Selling also allows the spouses to cash in on their home equity and split the profits.
In most cases, each person contributed to the purchase of the home, even if it wasn’t a 50/50 split. If you each want the house but can’t come to an agreement outside of court over who should get it, the courts will decide for you.
Court battles rarely work out just like either party would like and can lead to further animosity between the couples, complicating the divorce. Most people want to avoid a court case, so agreeing on a plan to sell the house and split the proceeds is often a simpler solution.
Once the family home is sold, the division of assets in the divorce should become more comfortable since you’re not trying to speculate as to the future value of the house. Selling takes time and effort, but agreeing to sell and how to split the money will avoid the pain and expense of a legal battle.
If one person insists on keeping the house, it’s important to understand the liability risks and difficulties of being a single homeowner.
One spouse may have enough income to take over the mortgage and all payments, but that also means eliminating the other spouse from liability. They’ll have to talk to the lender and refinance the house, qualifying on a single income for a house that was likely purchased with two incomes.
The spouse who wants the house might have the liquid cash to buy out the other, but a lender might not agree that they’ll have the continuing income to keep up with all the increased mortgage payments. If the lender won’t back a single owner, and the other spouse refuses to continue making payments on the house, you have to sell or risk foreclosure. Homeownership comes with significant liability risks and financial requirements. If you can’t take on those risks alone, you could lose your home or destroy your credit.
There’s a major financial incentive to selling the home before getting divorced. As mentioned before, the Home Sale Tax Exclusion says that if you are married and sell a home, you don’t have to pay capital gains taxes on up to $500,000 in profit. If you’re single, the capital gains tax exclusions drop to $250,000.
To be eligible for the exclusion, you must have lived in your home as a primary residence for two of the last five years. If one person hasn’t or won’t live in the home, it may make more financial sense for both parties to sell the house before a divorce is finalized so you can write off a larger profit. Couples can apply for this tax break whether they file a joint tax return or if they file separately, so you don’t have to still be married when it's tax-filing time.
→ Learn more about the tax implications of selling a house
Selling a home during a divorce is just like selling at any other time, except that you should be crystal clear on who gets what before the sale. As long as you’re not itching to get rid of the home, you should be able to get fair market value from a sale. Real estate agents and home appraisers can help you determine what that value is, at which point both spouses (through their respective attorneys) should agree exactly on how they’ll divide up the money from the sale.
If you're planning to sell your home, you can get started with a free estimate from Orchard. Our estimates are 30% more accurate than leading estimates, and we can even give you a guaranteed offer.
Selling a home requires preparation even in the best of times. Before putting your house on the market, consider any maintenance the home needs and hire a real estate appraiser to formally assess the value of your house. If you decide to invest in some repairs or upgrades, you and your spouse must agree on how to split those expenses and if or how that investment will impact the profit split. Discuss this process with your divorce attorney so you can formalize any agreements before investing more money.
Beyond financial investments, discuss other pertinent matters before listing. Will one spouse live in the home while it’s listed? Will they pay the entirety of the mortgage and other payments or will you split these costs? Who will prepare the house for showings and who, if either of you, will attend showings?
→ Here's the ultimate home selling checklist
When you’re about ready to sell, work with your spouse to find a good real estate agent to help sell your house. They'll work for both of you, towards a common goal and will be a good mediator in any conflict since their sole goal is to get the best price for your home.
Related: 10 questions to ask a realtor when selling
While your list price depends on an appraisal and your real estate agent’s opinion, you might not get that price. Accepting an offer on the marital home is a huge decision in a divorce proceeding. Be ready to compromise
While the house is on the market, agree on a price both of you are willing to settle for. If you can’t agree, trust the opinion of your agent. If you want to be done with the sale fast, then you may have to accept a lower price.
When offers start coming in, keep an open dialogue with your spouse, agent, and divorce attorney. If you can’t agree on certain offers, stay open-minded and use the advice of your attorney and real estate agent. Try to avoid contention as much as possible and keep the process civil — it will make the rest of the process easier.
→ Find out whether you should accept the first offer on your home
Dividing the profit from a sale is a matter for your attorneys. If one spouse contributed more to the mortgage or financial upkeep of the house during the marriage, they may receive a larger portion of the sale. If one spouse contributed more to the home but is keeping other large assets, more of the profit may go to the other spouse.
In some states, everything purchased or otherwise obtained during a marriage is considered equally owned by each spouse, regardless of the name on the deed. Your attorney will know if you live in one and understand the few exceptions to these rules.
Sometimes, these disputes wind up in court and become a judge’s responsibility to divide the profits. It’s better if you can come to a mutual agreement through your attorneys because few people leave divorce court happy.
→ Find out how long it takes to get money after closing
The court may order the sale of a house in certain circumstances, usually if the divorcing spouses are unable to reach a mutual agreement on how to divide the property or whether to sell it at all. This is known as a forced sale or partition sale.
When the court orders the sale of a home, they'll try to divide the proceeds in a manner that it feels is fair and just — courts believe in equitable distribution. Judges will try particularly hard to divide the profits evenly in community property states, where spouses are each entitled to half of everything acquired during marriage. The court can also step into during a home sale if disagreements arise during the process, like choosing how much to sell the house for.
It's worth noting that a forced sale can be a stressful and emotional process for everyone involved in divorce process, including the children. The court may take the interest of any minors before ordering a forced sale of a family home. If you're in the midst of a divorce, you may want to consult a legal professional and try to reach a mutual agreement on how to divide the property before resorting to a forced sale.
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