There are so many things to worry about if you are in the process of getting divorced. The most important is the custody of your children if you have them, but after that comes the financial aspect of the separation.
If you are getting divorced, the largest asset you co-own with your partner will likely be the home you live in together, and it is no surprise that the property will be your most significant financial concern.
Nevertheless, what happens to it when you separate from your partner and seek a divorce? There is no single answer; it varies depending on the individual circumstances of those involved with the divorce. If we go through the options available, you will find that there are ways to get through without selling the property. However, it may still mean an outlay of some kind.
Who stays in the house when you divorce?
Before looking at how you may want to divide the house with or without selling it, the first question would be who gets to live in it? Again, this is something that depends on the circumstances of those involved in the divorce proceedings. In general, if you have children, then the parent who maintains custody would be the most likely to be awarded the property in court, although this is not always the case.
Of course, things do not always have to get as far as a court if you and your former partner can agree between yourselves and your legal representation. Whichever way you do sort out who remains in the property though, if anyone, the options available to you and the court remain the same.
Here are the most common ways to deal with your property during a divorce.
Suspend the sale to a later date
If issued in court, this is referred to as a Mesher order, and it is used to provide the right of residency for one party until a specific event in the future. This could be remarriage, children turning 18 or leaving university and so on.
When the property is eventually sold, the profits are distributed between the two parties as agreed. There are issues here though, you sell the property and release the money eventually, but for a period, one party has to leave home and not receive compensation which could cause problems in terms of finding somewhere else to live.
This approach is most commonly used in a divorce that involves children, as it provides stability throughout the divorce and until they grow up.
Buying the other party out
In this scenario, one party buys the share of the property the other person is entitled to. This may commonly be half, but it could be less depending on when the property was acquired. For instance, a property already owned by one person that became the couple’s home would likely see an uneven split in ownership at the divorce.
It works as described, with through cash payment, a mortgage one party pays the other the value of their agreed share of the property. This sounds like an ideal solution in many situations. However, if you are struggling to raise funds to buy out your former partner, it can seem out of reach.
To tackle this situation, the court may include that portion of the property needing to be bought out in the asset division, providing the other party assets to the value and avoiding the need for funds to change hands. This is dependent on the assets available, of course, and it may not be an option in some situations.
Selling the property
While the other options offer a different approach that allows one party to retain ownership, or delay the sale to a later date, the other option is to sell the property. It works as you imagine, the property is sold, and the money left over after any mortgage is paid off and legal fees dealt with, is split between the two parties.
This offers a clean break that many going through a divorce value, and it does not require you or your former partner to finance the other person’s share of the property, so is often more practical. Nothing is perfect, though, and there are some issues with this approach.
If you have children, it adds to the upheaval of divorce, as it means a new home whatever happens in terms of custody. It can also be an issue if the property were in one of your possession before the marriage, effectively losing their home that could have important family ties or other emotional connection.
While this is perhaps a long way down the list of priorities during a divorce, it also leaves you open to the whims of the property market, the timing of the divorce could have a significant effect on how much each party receives from the sale.
In context then, selling the property has advantages in some situations, but can cause significant disruption in many others.
Do you have to sell your home in a divorce?
In all our options, either one or both parties in the divorce will at some point have to sell the property or their share of it. However, with options like the Mesher order, or buying out your former partner, there are ways for you to remain in your home after the divorce.
Which approach is best for you really is dependent on your specific situation. If you have children, keeping them in the home they are used to, especially if they are very young, will always be the best for them. The court will prioritise their wellbeing, and as such likely recommend an approach that allows the parent with custody to stay in the family home, using a deferred sale or buying out in most cases.
If you are facing divorce and have concerns or questions about your property or any other aspect of the process, you can contact our highly experienced team of divorce lawyers, they will put your mind at ease and help you to find the best solution for you and your family.
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