It’s not uncommon in my practice to have a case where both parties want to keep a home. It may be a vacation house, the marital home where they are domiciled, or even a commercial or rental property. Point is, there is this home, and two people who desire to be divorced, and each of them want the home.
Badly.
The judges in our state are not going to play King Solomon, nobody’s going to say “Well, if you can’t agree then we’ll ‘split the baby,’ take up a chainsaw and cut the house in half and you can each have one half.” That’s not the way the real world (or deeds and mortgages) work. Though judge’s will be happy to ultimately force the sale of a property (i.e. neither of the divorcing parties gets to retain the home) should neither agree on ownership post-divorce.
So, the conundrum, what to do when two people want something but only one of them can have it?
Property Division Common Sense
One thing that is sadly often missing in a divorce is common sense. But, let’s give it a shot. Let’s start here: who does it make the most sense to retain the property? Here are some things to consider:
- Who can afford the home post-divorce?
- Who has primary custody of the children?
- If a business property, who maintains it? For instance, if a lawyer owns the office property where their business is situated, then it probably makes sense for the property to go to the lawyer rather than have their ex be their landlord.
- Did the home belong to either of them or was gifted by one of their families, even if both names were ultimately placed on the deed after the marriage?
- What maximizes the pie for both parties moving forward?
- What can be bargained in return?
- And so on. This list is merely used for illustrative purposes.
Sure, you can force the sale of the property for fair market value and then divide the proceeds, and in fact that’s likely what will occur if you can’t come to an arrangement. But the fact is someone is going to “win” the house. Winning is going to mean having to buy the other side of their equity share. Given recent housing market swings, I have seen those who believe they were winning later realize they suffered defeat, and vice versa. The housing market is volatile.
In other words, be careful what you wish for.
