Michael G. Putter Attorney at Law
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Dealing with the family home in divorce, P.2

In our last post, we began looking at the issue of dividing the family home in divorce. As we noted last time, one of the important issues parties need to sort out when dealing with the family home is who wants to take the property, and whether the party or parties who want to take the property can afford to either buy out the other party or obtain a mortgage in their own name.

Negotiation on this issue can be tricky. For instance, it may be possible to cash out equity in the home in order to pay off the other spouse, but doing so may end up increasing the mortgage payment to a point where it would be unaffordable. In such cases it may be necessary to split some other asset or assets to compensate for the unequal distribution of the value of the home between the parties. 

In cases where only one party can feasibly qualify for a separate mortgage, the question of who takes the home may become easier to solve. That being said, which party ends up taking the home can sometimes fall on which party takes custody of the children, assuming the arrangement is to keep the kids in their same school and neighborhood. When both parties to divorce want the home, and both could qualify for a separate mortgage, a court will have to step in and determine the how to handle the situation. And, again, what is best for the children in terms of the family home will potentially impact this decision.

In some cases, a couple may simply be unable to obtain a separate mortgage, and they will have to either fall back on a property settlement agreement which makes the taking party responsible for the mortgage or which makes both parties partially responsible. This is obviously not an ideal situation, and it should be avoided whenever possible.

Divorce is never an easy thing, but it can be particularly difficult when there are deep disagreements regarding how to divide the home where a family has been living for years. For couples facing a serious impasse on this issue, it is important to work with an experienced family law attorney to ensure their rights and interests receive the strongest possible advocacy. This is especially important in situations where a couple, for one reason or another, is not able to achieve financial separation with respect to the mortgage.

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