Divorce and the marital home: Part One

If you’re like most middle class Americans, at one point in your life you pinched all your pennies and purchased your first home. You did your research on the area and the school zones, and you eagerly waited to find out how much you’d prequalify to spend. When you did find out, you were shocked. “I qualify for how much?!” If you’re anything like me, that was a pretty shocking (and sobering) moment. I’m no mathematician, but when I calculated out my monthly mortgage payment for a house that was in the top range of what I prequalified to spend, I was shocked that these crazy mortgage people thought I could afford so much house. Obviously, I really couldn’t afford the monthly payments! What on earth were they talking about? I couldn’t spend that much!

So, I did a little more research, and looked into interest rates and finally decided on purchasing a much more modest house with monthly payments that seemed a little more like something I could reasonably afford, while still being able to feed myself, pay my bills, maintain my car in good working condition, and have a little money left over for some fun. I was doing the responsible thing. I was living the American dream. The money I put towards my home would not only give me a place to live but, over the long term, provide me with a little extra financial security as the home slowly (but surely) appreciates in value. It was a big decision!

Whether you purchased your home before or during your marriage, you probably have a lot of questions about how the division of this valuable piece of property will be divided now that you’re contemplating divorce. It’s a good question, too, because a house is a complicated asset. It’s not like a table cloth or even a piece of furniture.

In this two part article, we’re going to talk about how property is divided in divorce and what options you have for how to handle your marital residence. We’re also going to talk about a few of the more common problems and pitfalls that I’ve seen come up in these types of cases, in order to prepare you as well as possible for what you may be up against when the time comes to sell your home. Read on!

So, how does property division work in a divorce?

Before property is divided between a husband and a wife who are about to go their own separate ways, it has to be classified. It doesn’t matter what kind of property it is; it’s all classified the same way. Dinner plates are analyzed the same way as your grandmother’s Waterford crystal glasses. The painting on the wall in the living room is lumped together with the power tools and golf clubs in the garage. Your home is added in there, too, for good measure, along with your linens, furniture, cars, boats, RVs, and napkin rings. Not to mention, your bank accounts and other pieces of intangible property (like your IRAs, stocks, bonds, mutual funds, and 401(k) accounts) also have to be classified before they can be divided. So, how is it done?

There are three types of property: separate, marital, and hybrid.

Separate Property

Separate property is anything that you earned, purchased, or acquired before your marriage. Since you weren’t married when you earned, purchased, or acquired the asset, it’s not divisible in your divorce. No matter how the property came into your possession, if you had it prior to your marriage, it is yours separately.

Any inheritance or gift you received that was given to you specifically (and not to both you and your husband as a couple) is also separate.

Examples: The car your parents bought you as a graduation present three years before your marriage is yours even after you separate and, eventually, divorce. The inheritance that you received from your grandmother is also your separate property, whether you received that inheritance before or during your marriage.

Marital Property

Marital property is anything that you earned, purchased, or acquired during your marriage. Because of your marriage, anything that you earn or buy during your marriage belongs to both you and your husband together, regardless of how the property is titled. Unless the property was a gift or an inheritance that was intended for you to receive alone (and not intended as a gift to the two of you as a couple), anything that you get during your marriage is divisible in your divorce.

Examples: If your husband purchased a car during your marriage, and titled it in only his name, it is still a marital asset, and will be divided between the two of you. If you received an inheritance from your grandmother during your marriage, and she made it clear that she intended you to have the inheritance alone, your inheritance is separate, and not marital. If you purchased and paid for a piece of real property during your marriage, it is marital property, and subject to division in divorce.

Hybrid Property

Hybrid property is property that can be classified as partly marital and partly separate. Usually, we see hybrid property in bigger, more complicated assets that require payment over a longer period of time. Houses, retirement accounts, and other similar kinds of property can sometimes be hybrid property.

Examples: If you purchased your house prior to marriage, but made payments on it with your husband during your marriage from marital assets, the house is a hybrid asset. So, how much is yours and how much is marital? Well, it all depends on how much of your separate money you invested from the beginning. Your down payment and any other separate payments you made on your own are all your own separate interest. So, if you paid for 25 years on your own, and then got married and the last 5 years of your mortgage you and your husband paid with marital assets, the house is primarily yours—usually, in those types of cases, you just buy out the marital interest of the party with less ownership in the property. As you can imagine, in that scenario, the marital interest would be very minor. If, on the other hand, you paid a down payment just before you marriage and made all the other monthly payments together, only the down payment (and, of course, any appreciation that can be attributed to your initial investment) would be your separate property.

So, what are my choices with my house?

Well, it all depends, first and foremost, on how the property is classified. Is it separate, marital, or hybrid? Based on our earlier discussion, you should now have a pretty good idea about who really owns the house. Probably, it’s either marital or hybrid, but, either way, it’s important to know and understand the distinction.

Obviously, you also have to look at whether there is equity in your home, and consider what makes the most financial sense for you in your particular situation. If there’s no equity in the house, you may want to ask yourself whether you want to hold on to a negative asset. On the other hand, if you can afford the monthly payments on your own, taking over a house with little or no equity, means that you wouldn’t really have to pay much (if anything at all) to take over your husband’s interest in the home. With a house where there is equity, it may be more difficult or expensive to refinance and take on the remaining mortgage balance and still pay off your husband’s half of the equity in the home. It’s always a cost/benefit analysis. Basically, with a house, you have four main options:

1. Sell the house.
2. You buy out your husband’s interest, refinance, and stay in the house.
3. Your husband buys out your interest, refinance, and he stays in the house.
4. Keep it and rent it out.
5. Foreclose or short sale.

Let’s look more closely at each of the options to discuss what may be involved.

Sell the House

Obviously, the first alternative is just to sell the house, especially if (1) there’s equity in the home (because that would translate into you walking away from the marriage with some cash on hand to set up your new life), (2) neither of you can afford the monthly mortgage payments on your own, and (3) neither of you is particularly emotionally attached to the home and don’t care to stay.

If the two of you agree to sell the house, there will be very few roadblocks. Still, it’s a good idea to talk to an attorney and a qualified real estate agent (in many cases, your attorney can recommend a real estate agent to you). Because you need as much money as possible to get your best, freshest new start possible, you’ll want to talk to both your attorney and your real estate agent about how to sell your house for maximum profit. You will probably need help figuring out what to list the home for, how to handle any repairs that need to be made before the closing date, and what your net proceeds will be from the sale of the home after the expenses are taken into consideration.

Remember that selling your house probably isn’t something that you do every day. With an asset this big, and so much at stake, it’s best to talk to a trusted professional as early as possible to get an idea about what you should do.

Negotiate a buyout

If you’re like a lot of women, you’re emotionally attached to your house. Not only is it a source of pride and the place where you’re able to relax, for a lot of people, your home is also the place where you raised your children. It’s a place with a lot of memories, so it’s special. If you’re feeling like you’d like to stay in the home, particularly if you’re worried about providing that very much needed stability for your children during the divorce, you’re not alone.

If, on the other hand, it’s your husband who is attached to the house, has future investment plans for the property, or can afford to stay, that’s not unusual, either. The process is the same, regardless of who plans on taking over control and ownership of the house.

In a buyout, one spouse give up his or her interest in the marital home in exchange for money. In order to do this, you’ll have to refinance your loan, combining what you still owe on your mortgage with the other party’s marital interest. The cash proceeds from the loan are then what you use to “buy out” your spouse. It’s not like you have to have the cash on hand to buy him out (though, if you did, that would be great); it’s just that you have to be able to qualify for the loan.

So, can you really afford it? Before you agree to refinance, talk to a financial professional. You may choose to talk to a CPA or a mortgage banker to determine whether (and how much) of a loan you might qualify for. Again, just like when you were buying the house, you may want to think critically about whether it’s really realistic to take on a loan at the top of what you qualify for. Ask yourself what you can realistically afford to spend each month, and what you’ll still have to spend on other things—like your car, gas, groceries, utilities, and things for your kids.

Better yet, don’t agree to refinance, even if that’s what you want. If you and your husband are negotiating a separation agreement, agree that you have the option to elect to refinance. Then, if you can’t refinance, or don’t qualify, or, for whatever reason, choose not to refinance, you haven’t breached your agreement.

“I’ll be able to afford to refinance or buy a new house, because I’m receiving child and spousal support!”

Remember that mortgage bankers have specific rules about what they can accept, too. If you’re planning on buying a house with your child support or spousal support income, most mortgage bankers will want to see that you’ve been consistently receiving that amount for certain period of time (usually six months). Remember the last time you bought your house? Mortgage lenders are kind of obnoxious. They want you to explain absolutely every single transaction that shows up in your bank account, and if your child and spousal support payments are intermittently received (which might indicate that your husband is struggling to pay it, and therefore may default later on), or are paid in different amounts each month (like, if you said that because he paid for school supplies you’d let him take half off this month), it’s going to look like your payments aren’t consistent and can’t be relied upon. It doesn’t matter whether you’re planning on buying a house or refinancing and qualifying for the loan on your current house, you’re going to have to satisfy a mortgage lender that you are capable of handling the mortgage. Make sure your child and spousal support payments are timely received, and consistently reflect the same amount.

On Wednesday, we’ll go over the last two options: keeping the house or foreclosing. If you have a specific question, feel free to give our office a call at (757) 425-5200.

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