Thursday, February 18, 2010

Dividing the Marital Home in Divorce

Although the marital home is usually the most valuable asset in a divorce case, divorcing couples and their lawyers can be surprisingly casual in its treatment in a property settlement or divorce judgment. Similarly, the mortgage on the marital home is often the biggest shared liability of a divorcing couple, yet little thought is given to securing settlement or judgment terms which will protect a spouse who relinqueshes possession or ownership of the home in the event that the home is not sold or refinanced as agreed or in a timely manner.

If one partner will be keeping the marital home, the judgment will ideally set forth a date by which that partner will have refinanced the home to remove the other spouse from any financial obligation, and will buy out the other spouse's equity. Similarly, it will provide for when and how the spouse who moves out of the home will transfer title.

Particularly when children are involved, a divorcing couple may seek a way to permit one spouse to stay in the marital home after the divorce even though it will not be possible to refinance the home until a later date. If possible, this should involve the parties agreeing to the value of the home, or stipulating to an appraisal, with the spouse who is going to stay in the home buying out the other spouse's interest. In this ideal scenario the spouse who stays in the home will work with the mortgage financing company or refinance the home, such that the other spouse is removed from any mortgages, liens, or other financial obligations relating to the home.

To read this article in its entirety, please click here.
For more information, contact the Family Law Offices of Renee M. Marcelle at (415) 456-4444, or online at


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