In many cases, the marital home is the biggest asset acquired during the marriage. It is also oftentimes the most difficult asset to divide. If the parties both live in the house and both of their incomes are required to pay for the house, then it may be very difficult for one party to keep the house free and clear from the contribution of the other. In many cases, the property will need to be sold and the equity split, if there is any equity.
Under today’s current economic times, with so many people under water on their mortgages, the value of their house is less than the amount owed on the house. In those situations, there is no ability to sell the house and split the equity. Thus, one party may wish to take over the expense of the house and refinance the debt in his or her own name, free and clear of any right claim or title of the other party.
In other situations, you have a family that lives in the house, with young children who are in school, in that school district, and the court really doesn’t want to necessarily remove the children from that situation. In those cases, the court can allow one party to remain in the house until the minor children are grown, and then the house can be listed and sold, at some date certain in the future, and then the equity can be split accordingly, either by basing the equity now, at the time of the dissolution, or basing the equity at the time the parties actually sell the house.
In many cases, the marital home is simply abandoned, and both parties walk away from it and get a fresh start. In some cases, divorce will lead to bankruptcy when there is excessive debt, mortgages, credit cards, medical bills, auto payments, and the like. So the division of the marital home can be a tricky issue. However, in my experience, most parties can reach an agreement with what to do with the marital home.
It is easy to evaluate the market value, based on appraisals, and the parties can get a good indication of what the property is worth versus what is owed. It is at that time that we can properly negotiate who is going to keep the home, who is going to pay for the home, and who is going to refinance in his or her own name.