Among the most contentious aspects of many New Mexico divorces is the disposition of the marital residence. There are numerous questions that will arise and with each question comes potential for conflict.
There is frequently a dispute over who keeps the house. Just as frequently, this dispute is rendered moot because the parties (neither party) are in a position to maintain the home following the divorce. This is typically where the decision process will begin which is an entirely different issue than whether the parties will cooperate in making it happen.
Can Either Party Keep the House?
The divorce attorney, and often a settlement facilitator will try to address this question. It is generally best and actually should be known well prior to the settlement facilitation or trial if it goes that direction.
Here are the first issues you should be discussing with your attorney:
(1) Does either party (or both) want to keep the house?
(2) Can either party actually afford to keep the house?
(3) Does the house need to be sold?
(4) No matter what the answers to the questions above, the next question will be; Is it possible for the parties to agree on a value for the house?
Necessity of Sale of the House
In many cases, the answer to #1 and/or #2 above is no. In those cases, the house needs to be sold. Valuation of the home then becomes the challenge. This valuation can be complicated by a number of conditions such as market conditions, equity, improvements and so on.
In addition, and most difficult to unravel, is the community and separate property interests in the home. This is where the conflict can escalate fairly dramatically.
There are numerous ways issues related to community and/or separate property can complicate the situation. For instance, the down payment could have been made with a gift or inheritance from the family of one of the parties. There may have been improvements over the years made from that same separate property or other separate property acquired over the course of the marriage.
This has to be sorted out. In cases with high value and complex ownership issues, it may be necessary to hire an expert or even more than one expert to sort it out properly. It is essential that this be done before the settlement facilitation.
However, even then, there may remain disputes that send these cases to trial leaving the judge to decide. This is typically not the best outcome for either of the parties as the fate of the parties, the family, the children and what may be their most valuable asset is turned over to the hands of the judge who has very little knowledge of the situation other than what is presented at trial.
Disposition and/or Division of the Proceeds by Order of the Court
Whether the parties come to an agreement or go to trial, ultimately the proceeds must be divided. The division will be based upon the factors above. It will either be done based upon an agreement between the parties (entered as an Order with the court) or by order of the court following trial.
Whether the Order comes as a result of an agreement between the parties or as a result of trial, the Order is fully enforceable. Violation of these orders happen with regularity landing the parties back in court.
Many times, one of the parties simply will not abide by the Court order. Other times, there are outside factors making it very difficult if not impossible to comply with the Order. For example, market conditions may not be such that the house can be sold without leaving the parties burdened with a deficiency judgment.
Seek Experienced Divorce Counsel
These are difficult situations. It is important to have the guidance of an experienced attorney.
It is highly advisable to seek help early in the process. It is far easier and almost always less expensive to do it right the first time than to have your attorney go back to try to fix difficult situations.
The Albuquerque divorce attorneys at Collins & Collins, P.C. can help.