Common Property Questions about Real Estate in Divorce

Q: Who gets the house?

Divorce court forms give you only one choice with real estate--one spouse gets 100% of the house, cabin, or other real estate and the other spouse can have a lien. There are many other ways to divide real estate. An attorney can tell you what options you have, advise you about the law, and write terms in the forms to meet your situation. You can change or add language to the court forms.

Example: If you and your spouse bought a house together after getting married, and paid the mortgage from earnings, the law says the house is a "marital asset." In the divorce, each spouse is entitled to a "fair and equitable share" of all the marital assets. Giving 100% of the house to just one spouse is not fair and equitable, unless you have some other way of compensating the other spouse. Common options are to create a lien against the house, or to award other assets (like savings) to the other spouse to compensate for their share of the house.

Q: I bought the house before we got married, it's mine, right?

To divide property under Minnesota divorce laws, you need to know the difference between "marital" and "non-marital" property. "Marital" assets must be divided in a fair and equitable way. "Non-marital" assets are usually not divided between the spouses. A non-marital asset is usually awarded to the spouse who owned it before the marriage.

In this case, if you and your spouse each get legal advice from a lawyer and understand the law, you may be able to divide your property fairly and finish your divorce.

Example: You owned a house before the marriage. Your downpayment $20,000 cash, and got a mortgage for $200,000. You made mortgage payments of $100 a month for 2 years before the marriage. Before getting married, you also made major improvements to the house, increasing the value. After 7 years of marriage, you are getting divorced and you want to keep the house. The real estate market has been good, and the value of your house has risen to $280,000. Your spouse agrees that you can keep the house, but wants $140,000 (half the value.) What is your response and how do you support your position with Minnesota law? With this house, you need to figure out what part of the $2200,000 is marital and what part is non-marital. An attorney can help you do that. The $20,000 downpayment, the mortage payments for 2 years before the marriage, the improvements you made before the marriage, and part of the increase in value of the house are "non-marital."

Q: We want to sell the house, is this allowed?

An attorney will ask about your situation and needs, and can advise you how to best protect your interests. An attorney can add terms to the court forms so they say exactly what you want in your divorce. Here are things to think about.

You and your spouse agree to sell the house (or other real estate) and divide the money from the sale 50%-50%. Here are some of the issues that come up:

• What if you owe more on the mortage than the market value/appraisal says the house is worth?
• What does it mean to divide the sale money 50%-50%? What expenses and costs come out first?
• How will disputes over accepting an offer for the house be resolved? You think the offer is too low, spouse wants to sell.
• While the house is listed for sale, who can live there?
• How will the mortgage, insurance, and taxes get paid until the house is sold?
• What if the roof gets a leak? Who will pay for that?
  
• If the house is not sold before the divorce is final, how should the house be awarded in the divorce decree? Should the spouses stay as "joint tenants" or each own half, as "tenants in common" or something else?

Q: Can we both keep the house after the divorce?

In short, yes. People want to keep houses for a variety of reasons. A few examples include:

• Waiting for market value improvement
• Keep in family for children
• Investment income

An attorney can help you create and agreement for non-marital joint ownership. This one will require a lot of the same questions to be answered as listed in other scenarios.

No matter what route you decide, it's likely one spouse will be looking for a new place to live. Choosing to CALL SARAH FIRST means you will be working with a neutral third party that is highly skilled in divorce real estate with experience. Contact Sarah now.