Column: How will you handle your real estate if you get divorced?

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Based on the calls I received from last week’s column, our readers gained some helpful and critical and crucial insight about the benefits of ownership before or after marrying.

It obviously got the “wheels turning” for those who were going to rent or considering purchasing. But what happens if you are married for a short or long period of time and now the “divorce” word comes up in discussion and you haven’t prepared for it with real estate a bone of contention; or someone isn’t well protected when it comes to either keeping or selling your home or investment properties?

Divorces are rarely easy, and very few end up with little or no disputes over your major assets.

For the majority who are going through a divorce, real estate is their largest shared asset. Whether a primary residence or investment property, you must reach out to get a qualified attorney to provide you expert advice and obviously, each will need a separate lawyer. Have either of you reached out to a matrimonial attorney to discuss your particular situation?

The most important determination about owned real estate during a marriage is when it was purchased. If the property was bought prior to the marriage and not used as a primary residence then it would most likely belong to that spouse, depending on what has transpired during the marriage.

However, if it is the primary residence or used as a source of marital income, then the property has now been shared equally as a marital asset subject to equal distribution between both parties.

However, in most states, it’s possible to own prior to marrying and still be able to claim complete ownership, even in the absence of a prenuptial agreement. The key to this situation is that the total exclusive benefit must reside with the spouse as the owner without any benefit to the other.

So if any money from rentals are placed in a joint account, or any usage is shared with the other spouse, then that exclusivity is no longer in effect and equitable distribution amongst both spouses will occur during the divorce.
If purchasing a home after a marriage or used for marital purposes in which both live with or without children, is normally an asset of both partners and the interest in the property must be divided equally in a fair manner between them.

These are ideal situations where everyone agrees. However, will this be the simple and least stressful path that both spouses usually take? Usually not!

I have seen some of the most contentious situations, especially when it comes to joint ownership.

However, one should keep in mind that the longer it takes to settle, the more it costs. Emotion always seems to take over and then logic gets completely thrown out the window. However, there are always exceptions to every situation; especially when young or adolescent children are involved going to school and one parent chooses to stay and the other wants to sell.

I have advised some couples to try their best to work it out before hiring an attorney and do what’s most advantageous for the kids and do your best to minimize the emotional impact on them as well as yourselves.

When all is said and done, you have only your children to be left on this earth and you hopefully want the best for them and their future. They have less to do with your divorce than your personal issues that you both may have, so always keep that in mind. Irreconcilable differences can and should be worked out, if all heads are kept calm; I realize it’s easier said than done!

However, if one wants the house and the other is willing to walk away, a buyout of 50 percent of whatever the selling price is what would occur; and the name of the departing spouse must be removed from all deeds, mortgages, or other rights or obligations on the property.

A judge will make a final decision if both want to retain possession of the property. Often, the ownership will be granted to one party at the cost of certain other assets that the other party may have wished to retain.

Divorces are not always fair depending on which spouse one converses with and that also may depend on the attorney and judges in each individual case. You want to resolve disputes amongst yourselves, if possible, so your legal costs will be minimized. You can also google the following and contact: NYLAGS Mediation Project for lower income situations, Collaborative Family Law Center, Community Dispute Resolution Center or matrimonialmediation@nycourts.gov.

One thing for sure, the process of dividing property between former spouses can be extremely complicated and perilous; so be wise and as needed, hire the most competent and knowledgeable attorneys.

Again there are exceptions to everything, so working it out and reducing the financial costs as opposed to letting a judge decide, will hopefully reduce the tremendous stress that you and your children will have to endure in the process.
Philp A. Raices is the owner/Broker of Turn Key Real Estate at 3 Grace Ave Suite 180 Great Neck. He has earned designations as a Graduate of the Realtor Institute and a Certified International Property Specialist. Receive regular “free” updates of sold homes in your area and a “free” Comparative Market Analysis” of what your home would sell for in today’s market or search on: WWW.Li-RealEstate.Com He can be reached by email, at: Phil@TurnKeyRealEstate.Com, or by cell: (516) 647-4289.

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