Getting Divorced: What Should We Do With the House?

Perhaps the most common property division issue in divorce matters is “what do we do with the house?”

The marital home is a big issue for several reasons.  The house is often the largest asset that a couple owns.  Cash flow issues frequently create the need for more cash, creating a need to liquidate the equity in the house.  One spouse may be emotionally tied to the home for sentimental reasons.  The parents may want to keep the house for the sake of the children.  

Suffice it to say, there are often many issues at play when making decisions about the family home. 

That being said, most couples’ decisions regarding their home fall into one of the following options:

1. Selling the house

This is frequently done when a couple cannot afford to maintain the marital home as well as a second home for a spouse that moves out.   It also works for couples that no longer need a large home.  This is also the only option if neither the husband nor the wife wants to keep the home.

2. One party keeps the house. 

This may work when one of the spouses wants to keep the house, and the other spouse does not.   This is also common when the parties feel that is important to keep the children in the house for continuity.   Frequently one spouse “buys out” the other’s interest in the home.

  3. One party stays in the house for some period of time, then the house is sold.

This works for a lot of couples that need to buy time.  The couple has to then determine how the expenses of the home will be paid until the home is sold.

  4. The parties keep the home, but rent it to a third party.

This option is less popular, as most clients prefer to simply sell the house if neither wants to live there.  And, finding renters can be a challenge. However, in the days of declining equity, this option may allow the couple to avoid a loss on the sale of a home until the market turns around.

  5. Nesting

Nesting occurs when the parties keep the home and alternate time in the home.  This is an option when the couple puts a high priority on keeping the kids in the home.  The parents have to figure out where they will live on their “off” days, which sometimes requires keeping up three homes instead of just two. 

The marital home is often a central issue in a divorce negotiation.  There are many possible ways to address the house.  The important thing is that the couple finds the solution that works for them and their family.  In a collaborative divorce, the parties have the time, space, safety and advice to do just that.

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.  

What About the Dog?

Of all the property that has to be divided in a divorce, the property that tends to stir the most emotion is a pet. I am a dog guy (I own two big dopes) and I get it. I don't ever want to give up my dogs. But, many clients are shocked to find out that the dog is treated like any other property in a divorce; they are either marital or separate property and are distributed accordingly.

Rest assured that the parties can always agree to visitation with pets, and they frequently do. Some people even exchange custody of the dog every week and share dog related expenses.

But, if a court is making the decision about the dog, the court will have to determine whether the dog was owned by a party prior to the marriage or it was acquired during the marriage. The court may also have to determine whether one spouse gave the other spouse the pet as a gift. If the pet was given as a gift, then the pet may be considered the sole property of the receiving spouse.

Frankly, judges do not like to make decisions about who gets the dog. They typically have larger issues to sort out (I mean that in a financial sense. There aren't many larger emotional issues than a pet.) But, if the case goes to court, the dog is legally an asset and has to be given to one of the spouses.

In a similar vein, I get the occasional phone call from someone that wants to sue for the death of or injury to a pet. Even if the person that injured or killed your pet is legally responsible, the damages in those cases are generally limited to the value of the pet. In most cases, the value of the family pet is no more than a few hundred dollars.

For those of you that own horses, things get a little more complicated. We recently handled a case involving a horse that went lame during transport to North Carolina. Horses can be worth a lot of money, and damages in those cases can be much higher. Cases involving horses may well justify legal action. However, horses, like other pets, are still considered simple property in the eyes of the law.

Unfortunately, the law does not yet recognize the unique emotional value of a pet. Thus, the emotional trauma from the injury to or loss of a pet is generally not a strong basis for a lawsuit or the collection of money in court. And, for most pets, their legal value is insufficient to justify the expense of a lawsuit.

If you are interested in legal representation, please contact me by email or at (919) 781-1311. You can also find me at www.nichollscrampton.com (this site currently being updated).

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.