Sell or Keep the Marital Estate?

In Separation & Divorce by Sarah Hink

One of the most significant, if not THE most significant marital asset for many couples is the family home. After all, when families buy houses, they put down as much money as they can up front, spend years making significant mortgage payments, and make improvements on the home over time. Unfortunately when it comes to divorce, the family home can become a source of incredible tension. This is not only because of the dollar value of the property, but because so many family memories and experiences occurred there. In fact, it may be the only home your children have ever known! So the question upon divorce becomes: Should you sell or keep the family home?

Is the House Marital Property or Separate Property?

In North Carolina, marital property is equitably divided. This means the court can make a fair division of marital property based on numerous factors. Marital property is all property that was acquired during a marriage, unless it is deemed separate property. Separate property is any property that a spouse owned prior to a marriage.

If the family house was purchased during the marriage, it is likely marital property. An exception to this may be if one spouse used separate property, such as the proceeds from the sale of a house that spouse owned prior to the marriage, to purchase the family home. Another example would be where a spouse used inheritance money received during the marriage to purchase the new home, making it separate property. In addition, if one spouse owned the house prior to the marriage, it is separate property. The classification of the family house is incredibly important for both spouses, which is why it is essential to consult with a knowledgeable and experienced family law attorney to assist.

What to Do with the House?

If the house is separate property, the fate of the house is up to the spouse who owns the property. If the family house is marital property, one common option is that one spouse lives in the home while the other finds some other place to live. The spouse who gives up the house will get an equitable division of marital property to offset the value of the house. Ideally, the children can stay in the home that they’re so familiar with, to also afford them a sense of normalcy. Unfortunately, this option is not viable for many couples as it is not affordable to maintain the payments and expenses of a house while also renting another property.

Another option is for the couple to sell the house and spilt the money in accordance with the court’s order. Unfortunately, this is also not a great option in many instances as: (1) it is reliant on the current conditions of the real estate market in North Carolina; and (2) it forces the children to have to leave their home, exacerbating the disruption they are already experiencing with the divorce of their parents. Ideally, spouses and the court will try to find a solution that serves the best interest of the children.

Call New Direction Family Law

The New Direction Family Law has represented clients in divorces for over twenty years. If you are worried about what will come of your family home as a result of your divorce, contact us. Our team understands how important this is to you and will fight for your legal interest. We serve Wake, Johnston, Lee, Harnett, Cumberland, Nash, Granville, Franklin, and Durham counties. Call New Direction Family Law today at (919) 719-3470 to schedule a consultation, or visit us online at our website.