Many of our clients are very concerned about what will happen to the family home when the divorce is concluded. That is often a difficult question that requires careful analysis and consultation with your attorney. However, there are several different scenarios which can occur:
The court, in its discretion, is now authorized to grant use and possession of the family home and certain personal property to the mother or father. The prerequisites to being granted use and possession of the family home is that the party is awarded custody of a minor child and there must be a need for the custodial child to continue to live in the family home. Upon the grant of a divorce, the court may grant the custodial parent use and possession of the family home for a period of no more than three years after the date of divorce.
However, if the court for a variety of reasons does not grant a use and possession order, then the house must be resolved between the parties through the divorce proceedings. Sometimes, the party who remains in the house wishes to simply continuing paying the mortgage and to be responsible for it. The difficulty with that solution is that the party no longer in the house may have his credit detrimentally affected if the other spouse does not pay the mortgage timely. Also, he remains obligated on the mortgage and that could affect his ability to obtain other loans. For those reasons, that solution may not be fair to the spouse not in the family home and as a result it is seldom agreed to.
There are two other possible solutions. The party who wishes to retain the house can have the house appraised; the marital equity determined; and agree to divide that equity in some fair fashion with the spouse who is not in the home. The party who wishes to retain the house would then refinance the mortgage to obtain additional funding in an amount adequate to pay the share of the equity to the spouse who departed. A new deed would be prepared in the name of only the remaining spouse who would be solely obligated on the new mortgage. The house would be solely in her name; the departed spouse would have no further obligation for it. The reason why this solution sometimes does not work is the spouse who wishes to remain in the house is unable to qualify for a loan in an adequate size to pay the share of the equity to the spouse who left.
The other solution is that the parties agree to sell the house in the most marketable fashion and divide the proceeds between them. That is the most frequent outcome, and a definitive way to dispose of the home equitably. If no other arrangements are made, at the conclusion of the divorce proceedings, if there is no use and possession order, the parties would own the home as “tenants in common.” Either of them could then file proceedings to have the house sold and the proceeds divided, and the court would appoint a trustee to do so.
The issues of the disposition of the family home are often quite complicated and require the assistance of your attorney to evaluate the best solution for you. The Baltimore County family lawyers at Huesman, Jones & Miles, LLC, provide knowledgeable, compassionate legal assistance with all of your divorce issues, including distribution of assets. The offices of Huesman, Jones & Miles, LLC, are conveniently located in Hunt Valley, Maryland to serve family law clients and their families in the Baltimore region including all of Baltimore County, Carroll County, Harford County and Howard County, including the areas of Towson, Baltimore, Bel Air, Columbia, Westminster and Essex. Call us today to schedule your free confidential consultation at (443) 589-0150 or submit an online inquiry form.