When it comes to divorce, property division is commonly one of the biggest focal points for separating spouses. It can also be one of the most contentious. That’s due not only to the financial impact property division can have on either spouse, but also because some types of property may be hold greater significance in terms of their sentimental value or their ability to provide stability during tumultuous times. This is especially true when it comes to determining the fate of the marital home in divorce.
At DiPietro Law Group, PLLC, our divorce attorneys help many clients throughout Virginia and beyond in matters of property division. While this can entail the distribution of many different types of assets and debts, it also includes the division of a family home, as well as the pursuit of various options for reaching workable resolutions. Below, we discuss a few important aspects of dividing a marital home in divorce, and how we can help clients protect their rights and interests when seeking a resolution.
The Marital Home: Marital or Separate Property
One of the most important aspects of property division is determining what is and what is not subject to distribution in divorce. Generally, this entails classifying property, such as a home, as marital property or separate property.
- Marital Property – Also referred to as community property, marital property can include debts and assets (including a home) which are subject to division between both spouses during the divorce process. Generally, marital property is that which was acquired during the course of a marriage, which means that if you and your spouse purchased a home after marriage, it is likely marital property subject to division.
- Separate Property – Separate property is not subject to division in divorce, as it belongs to one spouse. Generally, separate property includes any assets one spouse acquires prior to marriage or as the result of an inheritance.
Although these definitions can appear straightforward, determining if a home is marital or separate property isn’t always so clear. This is especially true in situations where spouses dispute the other’s classification of the home as separate property. It can also involve cases where a once-separate property home becomes community property, such as when the home is deeded in the names of both spouses. There are also times when a portion of a once-separate home’s value can be shared by both spouses, particularly if a non-owning spouse contributed to the mortgage or upkeep of the home during marriage. In these cases, valuation and forensic tracing can become important to determining each spouse’s share of the home, as well as any negotiations over reimbursement claims or how the home should be ultimately divided.
What Are My Options?
The fate of the family home can be resolved through several different approaches, the availability of which are generally influenced by the unique facts and circumstances involved, the unique objectives of spouses, and their ability to communicate, compromise, and reach an agreement. In fact, the two primary options, in the most general sense, involve resolutions reached either through out-of-court agreements or court orders:
- Out-of-Court Agreement – Spouses who are able to communicate and compromise effectively may be able to reach out-of-court agreements on their own as to what happens to the marital home. This is a workable solutions when both parties are able to resolve their own interests (such as how one spouse will receive their share of a family home when the other chooses to stay). It can also be achieved through alternative dispute resolution processes like mediation.
- Court Order – When spouses are unable to reach an agreement on their own, or unable to resolve substantial disputes, a Family Court may issue a decision for them. This requires both spouses to provide information and evidence to support their arguments before the court.
Whether agreements are reached between the spouses or through the court, there are a few common scenarios for how property division proceedings over marital home are ultimately resolved. These include:
- One Spouse Remains – One common option if for one spouse to continue living in the marital home. This can involving temporary arrangements as ordered by a court during the divorce process (often as a means to maintain stability in the lives of children) or more permanent resolutions spouses reach on their own or through a court order. When one spouse keeps the marital home for example, there may be terms for buying out the other spouse’s share of the home, or for offsetting their share through disproportionate awards or spousal support (i.e. less alimony to a spouse who keeps the home, or awarding other property to the spouse who does not keep the home).
- Both Spouses Leave – If both spouses do not wish to keep the marital home, a spouse cannot afford it, or if a court orders it as such, they may sell the home and split the proceeds.
Guidance Through Property Division & The Divorce Process
At DiPietro Law Group, PLLC, our legal team is passionate about protecting the rights of clients through each phase of the divorce process, including property division proceedings and negotiations or litigation over the fate of a marital home. If you have questions about your case, rights, and how we can help you explore your options for achieving the most positive resolution possible, please contact us to speak with a member of our team.