Family Law Watch: The Fight For The Family Residence

A major issue at the heart of a dissolution is the disposition of the family residence. The fight for the family residence is understandable given that couples invest considerable time, effort and money in creating a dwelling place. Unfortunately, divorce causes change, and one of the biggest changes is the loss of the family residence. So what options do couples have when a divorce is pending and there is a family residence to divide?

1. Sell the Family Residence: One option for divorcing couples is to sell the family residence. Proceeds from the sale of the residence are then divided between the spouses, depending on the agreement reached. If the family residence is to be sold, the parties may need to hire a real estate professional to appraise the residence if the parties cannot agree on the listing price. Both parties should discuss sale provisions, including a rough timeline for the listing and sale of the family residence.

2. Buy-Out: One spouse may choose to buy out the other spouse’s interest in the family residence. If this is an option, then the value of the residence would need to be determined either through a joint appraiser or with each party retaining their own appraiser. It is important for the parties to discuss buy-out provisions, including a timeline for the refinance of the residence and an outline of what will happen if the receiving spouse fails to refinance in a timely fashion or is unable to pay the mortgage. The parties should also discuss the timing of the title transfer.

3. Use of Residence Pending Sale/Transfer: Staying in the family residence pending the sale/transfer may be an option for some couples. While this might make sense for some families, consider the emotional ramifications of this arrangement. This may create an environment of stress and tension, not only for the parties, but also for the children. Before parties choose this option, it is important to have a plan that includes established boundaries and communication tools in the event conflict occurs.

While it may be uncomfortable and upsetting for parties to dispose of an important asset such as the family residence, it may also provide an opportunity for parties to make a fresh start.