One of the main areas that results in conflict during a divorce is property division. In a number of cases, conflict is worsened when it comes to dealing with the family home. Many divorcing couples tend to have a great attachment to the family home and as a result it is hard to decide whether to keep the home or sell it. A previous article discussed buying out your spouse, this article will discuss selling the family home and court awards in respect of the family home.
If the parties to the divorce prefer to sell the family home there are a number of issues that need to be worked out including the following:
- Which spouse will live in the family home and cover expenses in respect of mortgage, utilities and property taxes until the home is listed and/or sold
- Finding a real estate agent that both the spouses can trust to sell the home
- The listing price of the home
- The process of reviewing and accepting offers for the sale
- How to cover the costs related to the sale of the home. Generally, divorcing couples agree to share these costs equally, however, it is important that such an agreement is made clear
Once the home has been sold spouses generally split all net sales profits evenly; where separate property reimbursement exists they will also need to be addressed. However, if the divorcing couple cannot agree on what to do with the family home it is likely they will end up in court where the judge will make a decision.
A question may arises as to whether a court can award the family home to one spouse. It must be noted that in California courts must divide community property equally between the spouses. So, in the event the divorce ends up in trial, the court will look at all assets that have yet to be divided and order a net equal division. Where economy circumstances are applicable, the court may award a community asset (e.g. family home) exclusively to one spouse on conditions that the court deems to be proper to effect a substantially equal division of the community estate. The conditions will usually include an ‘equalizing payment’ to the other spouse. This means that when a community property asset is awarded to one spouse, the other spouse must be compensated by a cash payment or an offset/award of other community property. However, it is necessary for courts to consider the following economic circumstances which may support such a property division:
- The nature of the property
- Any emotional attachments
- The business acumen of both spouses and how that may impact which spouse is in the best position to keep the property. For example, if one spouse holds an MBA and the other spouse is an artist, the court may find it to make more sense for the MBA spouse to keep the financial planning business and the artist to keep the art gallery
- The spouses’ financial positions
For legal advice on your divorce find the best divorce lawyer El Dorado County.