Getting divorced can be extremely stressful for most people. If you are going through a divorce or planning to file soon, you might be worried about how your property will be divided, how time with your children will be handled, and whether you'll have enough money to maintain your lifestyle. Most people who go through a divorce must contend with both financial and emotional conflict because of the end of their marriage and issues about how to divide everything.
If you have been married for some time and share a home with your soon-to-be ex, you might be concerned about what will happen to your marital home and who will get it in your divorce. In many cases, the marital home is the largest asset a couple might own, so the stakes involved in dealing with the home can be fairly high. Here are some things to think about from a divorce lawyer in New Jersey at the New Jersey law firm of Ziegler Law Group, LLC.
Understanding Marital Property vs Separate Property
The first thing to understand if you are worried about how your home will be handled in your divorce is the difference between marital and separate property. In New Jersey, courts distinguish between the property either spouse owned before the marriage and the property acquired during the marriage. Only marital property will be included in the marital estate and subject to division amongst the parties. Assets one spouse owned separately before the marriage will typically remain with that spouse. However, if the spouse commingled a separate asset with marital property, it can lose its separate nature and be included in the marital estate.
In most cases, a marital home will be deemed marital property. If you and your spouse purchased your home during your marriage, you'll need to determine how to handle it in your divorce. If you owned your home before your marriage, it should remain with you. However, if your spouse contributed money to your home through mortgage payments, renovations, repairs, etc., the contributions and the increase in the value of your home could be deemed to be marital property.
How is Property Divided in Divorce in NJ?
A small minority of states are community property states for divorce cases. In those states, the marital assets are divided equally between the spouses. However, New Jersey is not a community property state. Like the majority of states, New Jersey follows an equitable distribution rule in divorce cases. In the equitable distribution of marital assets and debts, courts divide assets equitably or fairly. This doesn't mean that the assets will be divided equally. In many cases, one spouse might receive slightly more than the other spouse because it is just.
Who Gets the House in a Divorce in NJ?
Many divorces involve substantial conflict over the marital home, often because it's the most valuable asset that a couple might own. Selling the home and dividing the proceeds might be the easiest way to deal with the home. However, one spouse might be reluctant to do such a thing. When one spouse wants to sell the home, but the other one refuses, the spouse who wants to sell can ask the court to force the sale. However, there isn't a guarantee that the judge will issue a forced sale order.
If the couple has children, dealing with the home can be even harder. The parent who has primary residential custody might want to remain in the home so the children won't be uprooted. There are a couple of different ways to best navigate this route, including one spouse buying out the other's interest, refinancing the mortgage in their name only, or agreeing to continue co-ownership until the youngest child finishes high school. However, these solutions might not be economically feasible for either the custodial parent or the other spouse.
Factors Considered in Determining Who Gets The House
If a couple can't reach an agreement about how to handle the house, the court will decide for them. Judges consider numerous factors when deciding how to divide marital assets and debts, including the marital home. For the home in particular, the court might consider the following factors:
- Whether one spouse is financially dependent on the other spouse
- The contributions the financially independent spouse made to the home
- Whether the financially dependent spouse made contributions by raising children and maintaining the home
- The child custody and visitation agreement
- Whether the couple has minor children
- How well the children are adjusted to their home, school, and community
- Whether the lower-earning spouse will receive alimony and/or child support
- The physical and mental health of each spouse
- The ages of each spouse
If the couple signed a prenuptial or postnuptial agreement that addressed how the home will be handled in a divorce, the court will generally follow what the agreement states. However, if the prenuptial or postnuptial agreement was created under duress, coercion, or when one spouse failed to disclose their finances to the other party, the court might determine the agreement is invalid and disregard it.
What About the Mortgage?
In the event a couple has a mortgage in both of their names, the spouse who remains in the home will typically be required to make the mortgage payments. The other spouse might ask the remaining spouse to refinance the mortgage in their name solely to avoid problems. If the spouses decide to leave the existing joint mortgage as-is, the spouse who moves could run into credit problems. The lender will go after both spouses for payment if the remaining spouse falls behind on the mortgage.
If the remaining spouse fails to keep up with the mortgage payments, it can also hurt the other spouse's credit. Finally, having the mortgage on their credit could prevent the spouse who left from being approved for a new mortgage because of their debt-to-income ratio. For these reasons, it's best for the spouse who gets the home to refinance the mortgage. If they can't afford the payments or can't be approved for refinancing, the former spouses qill then need to considering selling the home
What Are Some Options for a Marital Home?
There are three main ways spouses can address the marital home in a divorce:
1. Sell and divide the proceeds
The couple could choose to place the home for sale and divide the proceeds as a part of the overall property division. This might be the only viable approach if neither spouse can afford the payments on their own or purchase new homes along with the existing mortgage.
2. The remaining spouse buying out the other's interest
If the spouse who wants to remain in the home can afford it, they can buy out the leaving spouse's interest in the home. This can be accomplished by the spouse who wants to remain in the home agreeing to take less of the other assets equal to the value of the leaving spouse's equity interest. However, if the couple doesn't own the home outright, the spouses will need to deal with the mortgage. The remaining spouse can refinance the mortgage to get a loan in their name alone, but they will need to be approved and make sure they can afford the mortgage payments, insurance, taxes, and upkeep.
3. Continue joint ownership
Some spouses agree to continue jointly owning the home for a predetermined time. For example, the couple might agree to keep the home until the youngest child graduates from high school. If the couple's split is amicable, they might agree to continue living in the same home in separate areas. In some cases, spouses might agree to take turns staying in the home with the children while maintaining a separate apartment they rotate in and out of. This approach requires flexibility and an amicable relationship between the divorced spouses, and it can also be expensive.
Reasons to Seek Legal Advice When Dealing with Marital Property
Figuring out how to divide the marital home can be challenging for any divorcing couple, even if you and your spouse are amicable in your divorce, deciding what to do with the home can be a complex undertaking. An experienced divorce lawyer in New Jersey at the law firm of Ziegler Law Group, LLC can help you understand the long-term implications of different options and how they might affect your finances.
Your lawyer can also work to secure a fair property settlement agreement that protects your financial interests. When you have an exceptional attorney, they can negotiate with your spouse on your behalf. If your divorce is filled with conflict, it's important to have an attorney who is willing to stand up for you and protect your rights to receive a fair share of the property.
Consult a NJ Divorce Attorney
If you are preparing to divorce your spouse, you should talk to an experienced divorce lawyer in New Jersey at Ziegler Law Group, LLC. Our attorneys can help you with all aspects of your divorce case, including what to do with your home, how to handle child custody and child support, and whether alimony should be addressed. To learn more about your legal options, contact us today at (973) 533-1100.
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