In the early days of running my blog I remember posting a story about a particularly acrimonious divorce involving a couple in New York. They were unable to agree anything. In particular, they both wanted to remain in the matrimonial home, despite owning another residence just two doors away.
When the case went to court the judge, perhaps exasperated with the case, initially ruled that the couple should divide the property in two and each live in one half. After another four years of bitter and expensive fighting, the court eventually decided that the property should be sold and the proceeds divided equally.
Over my years practising family law I came across many cases where both parties had such an attachment to the former matrimonial home that they both wanted to keep it. This is understandable, particularly where the property has been their home for many years, or where they have spent a great deal of time and effort getting it just as they want.
Unfortunately, dividing the property will almost certainly not possible or practical in most cases, so the parties are left with two alternatives: agree the matter, or argue it before the court.
The problem, of course, is that if they argue it before the court the parties will end up spending large sums in legal costs, most likely only for the judge to order a sale, unless there is some compelling reason otherwise. In the worst cases the legal costs can be so great that they eat up all of the equity in the property.
Accordingly, my advice is to think very carefully before arguing over who should have the property, and if there is an argument that can’t be quickly resolved then just agree a sale, rather than wasting a lot of money on legal fees. I know this is easy to say, but it does have the advantage of ensuring that neither party is left resenting the fact that the other party has the house and they don’t.
If you can agree a sale, then the only other matters that need to be sorted out are the sale price and how the proceeds should be divided.
The sale price is usually agreed, based upon the advice of the selling agents. If it cannot be agreed, then an independent expert can be used to determine the price.
As to the division of the net proceeds of sale (after payment of any mortgage, legal and estate agents fees), these will be divided equally, unless there is a good reason why not, such as the greater needs of one party.
Obviously, the advice above does not apply in those cases where there are dependent children and the house is needed as their home. In such cases there would not normally be a sale until the children are no longer dependent.
The above is, of course, is a very simplified look at what can be a very complex matter, and there are no ‘hard and fast’ rules when it comes to sorting out financial and property matters on divorce. You should, therefore, seek expert legal advice before proceeding.
John Bolch is a family law blogger