Divorces are so fact-specific that it is hard to find one rule that applies to all situations. However, more often than not, I find you cannot go wrong with this advice: don’t leave the house. This means that even though the two of you are suffering by living together, continuing to live at the home while the divorce is pending is almost always the better choice. You may believe that since you have to sign listing agreements or a quit claim deed to sell the house nothing can be done to infringe on your home ownership rights. Not true. Also, it really does not matter in whose name the loan or deed exist. So, don’t listen to an angry spouse telling you to leave because they, alone, are on the mortgage or the deed. A home in which you live with your spouse during the marriage—whether one or both of you are on the mortgage and/or the deed--is a marital home with regard to dividing the value of the home.
If the house is to be sold and you are not living at the home, you will lose all control over the sale. Showings, contact with the realtor, keeping the home in “showable condition” and being up to date on the marketability of the home will all be impaired—unless you have an extraordinarily rare relationship with your soon-to-be-ex spouse. Even a realtor who promises to always contact both Parties is often compromised by time and signatures and usually defers to one Party—the easiest to reach. So, if your soon-to-be-ex spouse does not want the house to sell after the divorce because they want to remain living there, they will interfere with the sale—all while you are living elsewhere. An angry soon-to-be-ex-spouse who does not want to sell the home will make certain it is not shown (“this is not a good time”, “I’m ill today, come back another day…”) or is shown in such poor condition that offers are not made. Acting out in front of potential buyers—like shooting guns, having barking dogs next door, shouting at neighbors or the realtor, or refusing to leave the property during a showing-- can make a property undesirable to a buyer.
If one Party is going to buy out the other’s interest in the home, the home will need to be valued. The value of a home with, for example, a bathroom where tile has been taken off the walls and where large amounts of garbage is left out and where the yard has become a receptacle for old appliances and other rusty junk, will be lower. That means the Party who is leaving the home will get less money. If you are not living at the home to be certain the other Party is not defacing or damaging or purposely sabotaging the sale effort, you may be left wondering why your beautiful home is receiving no offers.
Getting the Value of your Home
Whether you get an appraisal or a market analysis from a realtor will depend upon a number of factors. You should discuss this choice with your attorney. Sometimes, when a home is to be refinanced by one Party who is buying out the other, an appraisal will be part of the refinance process—so that will determine the value. Also, if you and your soon-to-be-ex spouse agree to sell the home, there is no need for it to be valued. The sale price will tell us the value. However, if one person is going to keep the home, an appraisal or market analysis will likely be necessary or just desirable so each of you will know what to expect. If you and your spouse agree upon an appraiser or a realtor to value the property, that may shortcut the litigation obstacles and get you the values quicker. Think about this, though: an appraisal may be a better determination of value over a market analysis if you suspect foul play by the other Party. Appraisals are mostly based on location, numbers of rooms, zoning and sales, while market analyses often include how a home shows (clean, updated, charming, gorgeously furnished or filthy) and intangibles, like neighbor status or views. Yard work doesn’t count with an appraisal, but it definitely counts with a market analysis. Furniture doesn’t count with an appraisal, but any realtor will tell you that a nicely furnished home will usually sell quicker and for more money than an empty shell. So, if the home does not show well and/or is unkempt, an appraisal may give you a higher valuation. Remember, if you are leaving the home and are going to be bought out, you want the value to be high. If you are remaining in the home and plan to refinance and/or buy out the other Party, you would want the value to be low.
Finally—and maybe the most important reason to not leave your home—your Children need you at home. Unless you are the victim of domestic abuse, staying in the home for the sake of your Children is probably the best thing you can do to create stability for them at a time it is in short supply. You are likely thinking that if you leave, the tension in the home will be decreased. There is some merit to this line of thinking because the tension may, indeed, be decreased. However, the fact remains that you left your Children with their other parent when they probably needed you most. They need to know that your love for them is even stronger than your anger at their other parent. Your commitment to them includes staying—even when it is painful and uncomfortable to stay. You should remain in the home for the sake of your Children and find a way to create some measure of calm and peace.
If you are looking for some legal assistance with home ownership because of a recent divorce filing, Jeanne M. Wilson would be happy to help you. She knows her stuff when it comes to local divorces and has the best reputation for understanding consideration. Give your favorite Colorado Springs divorce lawyer a call today to get started!