You can face many real estate problems in a divorce, but how about house custody? One unique case involves a couple which jointly owns a home, are both on the mortgage, and whose children left. She wants to be able to spend time living at their home alone. The husband disagrees and refuses to leave for any amount of time. Does she have the legal right to house custody half of the time?
Brick and Mortar Issues
The New York Times article re-frames the issue as a case of a married couple, jointly owning a house, with equal rights to it. So, the article states both need to be in agreement about what to do with the property.
Neither of you can sell the house without the other’s consent, nor can you limit each other’s access to it. It’s as much his house as it is yours.
If they bought it together and maintained it together, it’s marital property and most likely it would be divided 50-50. Most likely, they would be both entitled to live there until the place is sold.
The article suggests that for the moment, set aside your immediate desire to share time at the house and, instead, figure out what you ultimately want for the house once your divorce is finalized.
Do you want to keep the house? If so, you may eventually need to buy out your husband when you divide your assets. Or do you want to move? In that case, your husband could either buy you out or you could sell the property and divide the assets.
Florida Divorce Real Estate Problems
I’ve written about real estate problems in divorce cases before. A big question frequently arises: should you move out of the house before the divorce is over?
Sometimes the arguing gets too intense, and the court must intervene. For one couple in Brooklyn, their arguing resulted in their being ordered to build a wall dividing their home so each could stay in the house peacefully.
This was not just a simple line on the floor as in the 1989 movie: War of the Roses, but an actual wall of plywood and sheetrock through the middle of their house (see picture above). Interestingly, the judge gave the wife the kitchen and the husband the dining room.
The marital home is a valuable asset, maybe your most valuable asset, but it is also a place for you to live in and it is an important, and possibly big part, of the final settlement. Consider the following:
The home remains a marital asset, which is subject to equitable distribution, regardless of who lives there during the divorce process. If a home is marital then both parties have equal rights to buy–out the other’s share. Both may also be on the hook for liabilities.
Until a parenting plan in place, if you are interested in maintaining a meaningful relationship in your child’s life, leaving the home before a timesharing agreement is entered may show a lack of real interest in the child’s daily life. Moving out can create the appearance of a new ‘primary residential parent’ by default. Worse, if the process takes a long time, it creates a new status quo.
The person leaving may still have to contribute for the expenses of the home while also paying for a new home. It can be costly, and prohibitive expensive when you know that the process will take a long time.
Staying in the same home could create an incentive to negotiate a final settlement because living with your soon to be ex-spouse is very uncomfortable. However, if someone moves out, the person remaining in the home is sitting pretty and may be less inclined to settle.
If you Leave
Before moving out, there should be some discussions about maintaining the home and who is paying for which expenses, an inventory should be made of the personal property, artwork, silverware etc., and the boundaries for when the ‘out-spouse’ can use and enjoy the home after vacation
The New York Times piece correctly suggests thinking about your long-term goals. Once you’ve done that, try to reach a temporary agreement for how to weather this transition period.
That may mean that you alternate time spent in the house, or it may mean that one of you moves out, or that you both continue to live there until you can sell the property and move on with your lives. Moving out will have financial ramifications for both of you and those need to be carefully considered.
The New York Times article is here.