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Divorce: dividing the House 


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Dividing Real Estate in Divorce    

In a divorce, one of the most difficult issues is often what happens to the house the family lives in or other real estate. 

There are a number of options that must be considered when determining how real estate is to be divided in a divorce. That does not always mean that the real estate must be sold.

Determining Real Estate Value.

The first step in dealing with real estate issues is to determine the value of the property. If the parties are unable to agree on the current market value, there are several valuation methods that can be used.

  • Tax Assessed Value. The tax assessed value is usually not an accurate method to value real estate. tax valuations are generally low by as mush as ten to twenty percent. If there is a dispute in value, the tax assessed value is likely to be given little weight in Court.
  • Appraiser. It is often most cost effective to agree on a real estate appraiser to have a market valuation performed. This service will often cost approximately $300 - $400.
  • Realtor. A real estate valuation may also be performed by a realtor at little to no cost. However, such valuations are often less reliable than those performed by an appraiser since a realtor performs an appraisal to maximize sale price and has less training than a Real Estate Appraiser.

Determining Equity.

Equity is the true value of the asset of the property to the parties.  It is determined by subtracting the encumbrances against the property from the Real Estate Value.  Encumbrances may include any loans secured against the property including mortgages, second mortgages, home equity loans or secured lines of credit.

Under existing case law, costs associated with a sale of the real estate are not usually deducted unless the home will actually be sold as part of the divorce.

Determining Marital vs. Non-Marital Equity.

The next step  is to determine what portion of the equity is marital and what is non-marital. State laws vary broadly on this issue. Some states, primarily those that we call equitable property states, include in their statutes categories of assets that are not divided in a divorce. These are called non-marital assets.  Any non-marital assets that you possess remain yours and any non-marital assets of your spouse remain the assets of your spouse.  In most cases, non-marital assets may include:

  • Premarital. Any asset acquired before the marriage (if the asset was encumbered by a loan that was paid off during the marriage, it may only have a partial non-marital value);
  • Prenuptial Exclusions. An asset excluded by a valid prenuptial agreement;
  • Personal Injury Proceeds. Personal injury settlements are generally considered personal to the injured party and are non-marital in nature;
  • Inheritance. Any proceeds or assets from an inheritance;
  • Gifts. Any asset acquired as a gift to one, but not both parties.

It is important to recognize that all assets are considered part of the marital estate unless proven otherwise by a "preponderance of the evidence."  This places a significant burden on any person making a non-marital claim. 

It is essential that any and all documents including documents of title, receipts, or canceled checks that support your non-marital claims must be provided. Any failure to provide documentation may result in the division of the asset in the divorce.

If one party had a non-marital asset and sold that asset or traded it for another asset, in some states it is also possible to trace that non-marital interest by showing a paper trail following the non-marital proceeds into the new asset.  The new asset, however, must be something specifically identifiable, like a house, a car or perhaps  an investment plan. 

Some states even offer a party with a non-marital interest added value on that investment that is due to passive appreciation of the asset. "Passive Appreciation" refers to the increase in the value of the asset based on market fluctuations and which is not due to any work or improvements made to the property during the marriage.   Allowing a party to claim a non-marital interest plus passive appreciation is adopted by only a small number of states. 

Minnesota offers a simple formula illustrating how passive appreciation works.  In Minnesota the Schmitz formula is used in determining the marital versus non-marital interests in real estate. Since real estate mortgages and other encumbrances against property are paid off over a significant period of time, marital interests may be created in real estate that was owned by one party before the marriage. As encumbrances are paid off during the marriage, a marital interest is created.

The formula states that the proper calculation of a non-marital interest may be derived by determining the ratio of equity to market value at the time of the marriage and then using that same fraction to determine non-marital interest at the time of divorce. For example, lets assume a spouse owns a home prior to marriage and that home has a value of $100,000 at the time of the marriage and that is encumbered by a mortgage of $75,000. The $25,000 equity (the difference between the value and the encumbrance) becomes the numerator in the Schmitz formula and the value of $100,000 becomes the denominator. As a result, the non-marital interest is 25% of the home's value. If the home appreciates to $200,000, the spouse with the non-marital interest may claim the first $50,000 as the non-marital interest and any remaining equity would be divided as marital.

The limitations of this formula are obvious. First of all, it may be very difficult to determine with any degree of accuracy the value of real estate at the time of marriage unless an appraisal is done at that time. That value alone may become a contested issue that results in litigation and testimony of experts.

Second, In many instances, mortgages are refinanced after marriage, second mortgages and home equity loans may also be incurred. These new debts may erase or partially erase a non-marital interest.

Third, the formula does not consider the effect that capital improvements made during the marriage have on the real estate value. Capital improvements that are made during the marriage and which increase the value of the real estate may erode some of the non-marital interest represented by the Schmitz formula.

Often, presenting a persuasive property case depends on clear cut documentation, and expert testimony. The Minnesota State Bar Association includes a Schmitz Formula Calculator on their web site to determine non-marital interest. Use this calculator only while understanding its limitations as set out above. It is important to consult with a lawyer regarding significant non-marital issues.

Dividing the Asset.

Once Marital versus non-marital interests are determined, the parties may discuss a division of the asset.

It is important to recognize that being named on the title and being named on the mortgage represent two very different interests.  A person whose name appears on a title is considered the legal owner to any person seeking to purchase the property.  A person whose name appears on the mortgage, however, has no ownership interest in the real estate and simply has a responsibility to pay the  the debt secured on the  homestead.  Often parties seek to have their name removed from the title believing that doing so will mean that they are no longer a debtor on the mortgage. That is not correct. 

With that said, there are many ways to divide the homestead or , more precisely, the homestead equity in a divorce.

Occupancy/Ownership by one. If the real estate is awarded to one of the parties, the other party must be compensated for their share of the marital equity. This compensation may take one of several forms.

  • Award of Other Assets. Try to think of the property division as a spread sheet with three columns. In the first column, list the asset. In the second column list the value of the asset awarded to the husband and in the third column the value of any assets awarded to the wife. If on party is awarded the real estate, their column will reflect the marital equity awarded to them. This may be offset by other assets awarded to the other party.
  • Refinance Mortgage. When one party is awarded real estate, the other party may remain obligated on any mortgage, second mortgage or home equity loan if they were a signor on the loan. As a result, in most instances the real estate mortgage must be refinanced to remove the other party's name. As part of that refinancing, the party that is awarded the real estate may seek additional funds to pay off the other parties' equitable interest.  
  • Pay Off Over Time. A party's interest may also be paid out over time with or without interest abs negotiated between the parties. This is usually only used when there are no other assets that can be used to equalize the property division. The pay off amount and period may depend on the respective incomes of the parties.

Sale and Division of Proceeds. When no other assets are available to equalize the division of property and the parties are either unable to afford the real estate or unable to refinance the real estate, the property may be sold and the proceeds divided.

  • Immediate Sale. Real Estate may be placed immediately on the market for sale with the parties dividing the net proceeds realized from the sale. "Net proceeds" are generally defined as the amount remaining after the following costs have been subtracted from the sale price or appraised value of the homestead:
    • Expenses of sale, which shall mean all the usual and customary expenses of sale such as attorneys' fees, points, broker's commissions, assessments, expenses of updating the abstract, and other normal costs of closing;
    • Any secured debt including any Mortgage, second mortgage, home equity loan or secured line of credit;
    • A credit payable to either party for the amount of principal reduction made by him/her on the mortgage up to the date of the sale.
  • Sale in Future. The parties may agree to sell the real estate at some point in the future. This may be agreed upon to allow the party occupying the real estate to attempt to repair credit and ultimately refinance the mortgage. It may also be agreed upon to allow any minor children to remain in the homestead until some event in the future. Without an agreement of the parties or some showing of hardship, a Court is unlikely to require the party that is not occupying the homestead to wait to receive his/her equity until the children are no longer minors.

    If one party occupies the homestead, that party will generally be required by the Court to pay  any secured encumbrances against the homestead. That requirement by the Court, however, is not binding on any creditors.  As a result, if the person with occupancy fails to pay, and the other party is still listed on the mortgage, that person's credit may be affected and the creditor may seek collection against either party. As a result, the party that is not occupying the homestead will want to include language in the agreement of the parties and the final order which protects his/her credit rating in the event that the occupying party fails to pay the debts secured against the real estate.

     There are many ways that this can be accomplished including requiring that the home be sold should the occupant fall behind on the mortgage, or allowing the party without occupancy to make payment to protect their credit rating and to seek reimbursement plus fees and costs against the other party.



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