A real estate lawyer answers eight of the most common questions about real estate and divorce from couples going through this tough stage in their lives.
By Lee A. Drizin Updated: April 29, 2018
Are you getting divorced? Do you worry about what’s going to happen with your joint real estate property – particularly the family home? Should you sell it, buy out your spouse’s share, or have them buy out your share? What are your options? You need answers to these questions about real estate and divorce – and to reduce your uncertainty about your post-divorce future, you want those answers fast! With your cooperation, patience, and assistance from both family law and real estate lawyers, you can find workable solutions to your housing and other issues during divorce.
In this article, an experienced real estate lawyer answers eight of the most common questions about real estate and divorce from couples going through this tough stage in their lives.
Real Estate and Divorce Question 1: Should I Really Sell the House?
Divorce will shake your very foundations because of the changes it brings, especially when considering whether to sell your family home or not. Deciding on selling depends on your answers to the following questions:
- Does it make sense to hold it jointly with your Ex?
- Can you keep paying mortgage and maintenance?
- How long would you live in the house if you keep it?
- What or how much would you give up to keep it?
- Are you willing to sign up for any tax consequences if you’d keep it?
But then, if neither can afford to buy out the other nor any of you wants to stay in the home, you must proceed putting the property up for sale. The proceeds from the sale can be divided, but you should pay the mortgage, broker’s fee and other costs first.
Real Estate and Divorce Question 2: Should I Consider Buying out my Spouse?
Buying out the interest of the other person is one way of dealing with a family home in divorce. The custodial parent commonly buys out the non-custodial parent’s interest in order for kids to keep living in the house in many cases. Another advantage of buying out is you don’t need to sell the house if the market conditions are not good.
For a complete guidance based on your particular situation, consult a family lawyer.
Real Estate and Divorce Question 3: Is it Worth to Advertise a Divorce Sale?
It is not a good idea because potential buyers might think you’re selling out of desperation as you’re getting a divorce. In fact, you should still stage the home with the two of you being together: picture frames with both of you in the photos, both your clothes in the wardrobe, etc.
Real Estate and Divorce Question 4: Is it Possible to do a Deferred Sale?
If you and your ex-spouse agree, you don’t need to sell the home and hold off selling it so that your children can stay and live there until they’re mature enough to move into their own. If you cannot buy out your ex, then you can keep and stay in the house. But then the ex who moved out is stuck on the home loan – which means they likely won’t qualify for a new home mortgage.
Real Estate and Divorce Question 5: What Should I Do about the Mortgage?
It is easy to get your name off the deed, but not off the mortgage. If not impossible, it might make it harder for you to leave your name on the mortgage when applying for a loan to buy your new home.
The both of you can ruin your credit score fast if one of you takes the title but both of you are still on the mortgage. And if the spouse who’s keeping the house isn’t able to make the mortgage payments, your credit score will also be negatively affected.
- If you’re keeping the house, you should refinance into a new mortgage loan, meaning you should be qualified to apply for the loan application separately and pay the refinancing fees along with the risk of paying higher interest rates.
- Now if the both of you would agree, the spouse moving out can agree of keeping his/her name on the mortgage for a time so that you can keep the home in order to apply for a new loan.
Real Estate and Divorce Question 6: Should I Buy a New House?
You should not. It may not be a good idea to renovate the family home or to buy new home while the divorce process is ongoing. Why?
- Buying a new house – Your ex can claim interest in your new home if you didn’t purchase it as a separate property.
- Fixing the old house – Before performing any major repairs or renovations on the family home, make sure you have a written agreement that clearly states how/when the spouse footing the bill will be reimbursed later.
Consult an experienced lawyer about how these actions could negatively impact you – or for ways to ensure that they can’t come back to haunt you – before embarking on renovations or making an offer on a new place.
Real Estate and Divorce Question 7: What Does “FLARPL” Mean?
In the USA, a Family Law Attorney Real Property Lien (FLARPL) means the client gives his/her attorney a lien against his/her share of the joint real estate property in order to cover attorney’s fees if he/she is low on cash.
However, it can also be a challenging process for the both of you. For instance, a FLARPL will remain in effect even after the real estate property is transferred to the spouse who did not sign it. He/she has to pay off the lawyer or let the cloud remain on the title.
Real Estate and Divorce Question 8: Should I Include my Kids?
Yes. Divorce is a tough time – especially for children. Including them in your plan to sell the house, as well as letting them know what the next steps will be, can make them feel a little bit more comfortable about the future. If your divorce is relatively civil, try to agree on how you will answer certain questions with your ex-spouse beforetelling the kids. For instance, do both of you intend to remain in the same neighborhood (if possible)? Will the kids be attending the same school next year? Where will the dog live? If both of can offer more-or-less the same answers to your kids, you won’t confuse or upset them by providing contradictory information.
Those are the most common questions I get about real estate and divorce. Especially if your situation is complicated, or if there are multiple real estate properties involved, be sure to consult a real estate lawyer who can answer your questions and help you stay on the right track. Along with your family lawyer, you real estate lawyer can help to smooth out the divorce process for you, make sure to review all the documents, and ensure that all legal undertakings are executed properly.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship, and real estate matters. He handles contested probate and administration, has been successful in both jury and non-jury trials. www.DrizinLaw.com