The Marital Home

The marital residence is often the single most valuable asset possessed by the parties. It is also often the single greatest liability. The home will be divided like any other community asset. Similarly, if one party is claiming separate ownership in the residence, this separate property claim must be proven.

Many times, the home will go to one party or the other along with the mortgage. This asset will be traded against other community assets to equalize the overall distribution of property and debt on dissolution of the marriage. There are a number of complications that can arise. First, the parties often cannot agree on who gets the home. If the parties cannot agree, the court will decide. The Court will consider numerous factors including who has primary custody of the children, the financial resources of each party, the financial ability of the parties to keep up the mortgage and so on. The party acquiring the home will be ordered to compensate the other party for his or her share of the equity in the home. In addition, the party keeping the home will be required to refinance the home so that the other party is not burdened by the mortgage.

Many times, the Court will simply order that the home be sold and the equity be divided along with the other assets. This too can cause problems since it can take a long time to sell the home. In the meantime, one or the other parties must be given possession of the home, and the mortgage and other bills associated with the home must be maintained. To further complicate matters, even when the home is awarded to one of the parties, that party is often unable to refinance the home. This can be quite a burden on the other party as that party will be unable to obtain financing on his or her own home until the mortgage is cleared from his or her name. In the event that the party keeping the home cannot refinance for a long period of time, the other party is justified in filing a Motion to Compel the Sell of the Community Residence. Depending upon the circumstances of the case, it is not unusual for the Court to Order the Sell of the Home.

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