The house is, in many cases, one of the biggest, most emotionally charged elements in a divorce, for husbands and wives alike. Of course, I don’t represent any husbands, but I can tell you about it from the wife’s perspective.
The marital residence in Virginia divorce
So, obviously, something has to happen with the house. It’s easy, in most cases, because the options are so limited. You either sell the house, or one person buys out the other person’s interest in the house. If both spouse’s names are on the deed and the mortgage, that is accomplished through a refinance.
You just have to decide what you want to do. Does he want to keep it? Do you? Would you prefer to sell it? Those are really the only options, and you have to decide from among them.
But my name isn’t on the deed and/or the mortgage.
It doesn’t matter very much. That’s not to say it doesn’t matter at all, because, technically, if your name isn’t on the deed, your husband can sell the house without your signature.
Under Virginia law, though, property is marital regardless of title – so, whether or not your name is on the deed itself doesn’t actually affect your property rights in the house.
If your name isn’t on the mortgage, that’s totally fine! That means the mortgage company can’t come after you for payment on the mortgage if he doesn’t pay. If it goes into foreclosure or whatever, it wouldn’t be your credit that was wrecked – so, continuing to pay the mortgage is going to be a much bigger priority for him.
What if he wants to keep it? I’m scared of that!
Honestly, it’s probably ideal if he wants to keep it! Just think of the advantages!
If he keeps the house, you don’t have to sell it. That means you don’t have to deal with a realtor, stage it, take pictures of it, keep it constantly clean for people to come see it, offer any Saturdays for open houses, or do any of the terrible stuff that comes with listing a house for sale.
You also don’t have to wait for a qualified buyer to make an acceptable offer. You’ve already got a buyer – your husband! That means that, in your separation agreement, you can specify that he’ll refinance within a certain period of time, and then you’ll get paid your portion of the equity. It’s really that easy. Either he’ll qualify and he’ll go through the refi quickly, or he won’t—and you’ll sell the house anyway.
Another benefit is that there won’t be an inspection. There won’t be a requirement that you fix certain things in order to sell the house. You won’t have to make improvements out of your post-separation income to maximize the value of the house. There are lots of little ways this will save you, too, and these are just some of them.
I think a lot of women feel that their husband is pulling one over on them when he elects to keep the house, but I don’t see that as being the case at all. Being able to avoid the difficult situation of listing a house and waiting for a qualified buyer, and knowing that you’ll get your portion of the equity sooner rather than later (your qualified buyer, you know, might not want to close for several months, or might have a contingency based on another house selling, or something else annoying like that), is pretty invaluable. Listing a house is difficult, time consuming, and emotional. Avoiding it, if you can, might be ideal.
How do we determine what the house is worth?
It all depends! Some people agree on a price for the house. Others go off of a tax assessed value. Still others actually hire someone to do an appraisal (usually, we specify that the person must be mutually agreed upon). You can do whatever you like to ensure a fair and reasonable value for the house – after all, your share of the equity will be determined by what the house is worth and what is still owed on it!
Mostly, it depends on how amicable things are between the two of you. But an appraiser is always a possibility, so don’t be afraid to suggest something like that. (Though keep in mind that there will likely be some added cost involved.)
How does it affect custody?
It really doesn’t. It’s not like because he kept the family house it’s going to give him an edge up when it comes to custody. It will probably be nice for the kids, though, to be able to stay with him in a house that they’re familiar with. I don’t see how it’ll have any negative impact on you as far as the case is concerned, though.
As far as school enrollment is concerned… Usually that depends on where the children spend most of their time, but it depends on (1) kind of custodial relationship you wind up with, and (2) the rules in your particular school district (some are more strict than others). Obviously, if you have primary physical custody it’ll be different than if you have shared physical custody. And, then again, there are degrees of shared custody – if you have week on/week off custody (essentially 50/50 custody), it’s different than if you just barely meet the minimum for shared custody. So, that’s really something we’d assess on a case by case basis. We might also compare the quality of both school districts. And if you want private school instead, that’s a totally different analysis. So, it’s definitely something you’ll want to start discussing with an attorney, sooner rather than later.
In the meantime, if you have any questions about your marital residence or your options as your divorce begins to move forward, feel free to request a copy of any of our books or free reports or schedule a confidential one on one appointment with one of our licensed and experienced Virginia divorce and custody attorneys today by calling our office at 757-425-5200.