The decision to divorce can be a long time coming. Once this decision is reached, however, most couples feel the need to transition the emotional distance between them into a physical one. At the start of the divorce process, or during separation, couples are then faced with the question of who will remain in the home that they shared during their relationship. Both parties may feel sentimental ties to the property and many times, neither is interested in uprooting their life to find another place to live. There are several potential outcomes of divorce with regard to the marital home, each of which is explained in more detail below, but the decision to stay or to go prior to the divorce being finalized can significantly influence the result. Each situation is unique and your circumstances will ultimately determine the best course of action for you. Addressing the following considerations can provide you with the necessary guidance to make informed decisions about what is best for your future.
Questions to Ask Yourself Before Leaving Your Marital Home During Divorce
Am I entitled to a share of the property?
First and foremost, it is important to understand that New Jersey operates under the “equitable distribution” model. This means that during the division of assets process, all marital property is subject to fair and equitable distribution. It is important to note that “equitable” does not necessarily mean “equal” with regard to property division. The next question to address is whether or not the home is considered marital property under the law. If the home was purchased during the marriage, it is generally considered marital property.
If the home was inherited or purchased by either party prior to the marriage, it may be considered separate property and thus, not subject to equitable distribution. In some cases, the distinction between marital and separate property becomes blurred. For instance, one spouse may have purchased the property but included the other on the deed after the marriage. In other cases, the spouse who does not technically own the property contributes to expenses for the home, mortgage payments, or renovations that may mean they are entitled to compensation during the divorce. Generally, the homeowner will maintain possession of the property or, if the property is to be sold, he or she will be awarded a greater share of the profit from the sale.
In cases involving high net worth divorce, there may be multiple homes or properties to be divided during the divorce process. An equitable settlement of these cases often requires complex property distribution and the assistance of a divorce attorney who is well-versed in this realm of the law can serve as an invaluable asset. Your attorney may also call upon experts such as real estate appraisers and financial advisers to further support your case with regard to these shared properties.
What are my options with regard to the house?
Equitable distribution of the marital home can be accomplished through three avenues:
- Sell the Home: This option is rather self-explanatory, but it generally entails selling the house and dividing the proceeds from the sale. The shares of the home need not necessarily be equal. As mentioned above, equitable distribution does not mean “equal” in all cases. As such, all of the factors of equitable distribution will be considered before the determination of shares is made.
- One Spouse Buys-out the Other: This option is only viable when one spouse has the funds to purchase the other spouse’s equity in the property, as well as to maintain the property independently.
- Maintain the Home as Co-owners: This option is often attractive to parents who agree that their children should have the opportunity to stay in the home until reaching a given benchmark such as finishing high school and going off to college. In these cases, one spouse typically moves out and continues to own a share of the property for a duration of time before the agreed upon time at which the house is to be sold. This may require agreements as to whom will be responsible for mortgage payments and other expenses while both spouses own the home. If you are required to fund a portion of the home and to pay for another residence, this can be significantly stressful and must be taken into account prior to entering into any arrangement.
Are there outstanding child custody issues?
If you have children and are undergoing a divorce, the child custody arrangement will likely become intertwined with discussions about the marital home. If you do not have a child custody agreement in place for the period of your divorce, it may be extremely difficult to ensure that you have adequate time with your children if you move out of the marital home. The implications of this are two-fold. First, it may be difficult to attain primary custody of your children if your spouse is living with them full-time during your divorce. Second, if your spouse is living with the children in the family home during the divorce, this may influence a judge to allow your spouse to maintain possession of the home moving forward. At the very least, it is advisable to have a written agreement regarding child custody in place prior to moving out of your shared residence.
Have I documented all of the assets within the home that may be subject to equitable distribution?
The division of assets process requires agreement about a broad range of items, including cars, furniture, antiques, collectibles, paintings, jewelry, and many more. Before leaving the marital home, it is essential to document all of the items that hold significant sentimental or financial value. Developing a lists of items with accompanying photographs can ensure that you are not prevented from receiving your share of the value of the marital property to which you are entitled.
What is my goal for the property in the final divorce decree?
Taking into account the above, the question remains: what is your ideal outcome with regard to the marital home or homes? The decision to stay or to go is never an easy one, but if you feel strongly about maintaining the residence, allowing your spouse to develop a new normal within the house (with or without children) may not serve you during divorce proceedings.
As mentioned previously, every situation is unique and your best course of action will be best determined after careful consideration of your goals and priorities. Your divorce attorney can serve as a considerable resource while making these important decisions. If you are considering or have filed for divorce in New Jersey, contact our Bergen County offices anytime at 201-397-1750 for a cost-free consultation. One of our knowledgeable divorce attorneys will be happy to answer your questions and to outline all of your available options.
