Dividing the marital home in a divorce is often a close second when it comes to issues of contention (the front runner is child custody). Real estate is frequently a couple’s most significant asset and deciding how to distribute the property can be tricky, particularly if you still have a mortgage. Your lender will continue to consider you and your spouse jointly obligated until the property is either sold or refinanced.
Unlike liquid assets (assets that can quickly be converted to cash with minimal impact to value) real-estate poses some unique challenges like determining if either spouse will remain in the home after the divorce, accurately valuing the property, and reaching a reasonable distribution of any equity in the property.
There are three common methods for determining the property’s value: the tax assessed value, an appraiser, or an evaluation by a realtor.
Tax Assessed Value
This method is the least common and uses the property’s tax assessed value. The tax-assessed value is usually the same as the property’s fair market value. This is the price that a property should sell under normal market conditions. It is important to note that “normal” is subjective but generally speaking a normal market is one that is not in distress—meaning there haven’t been a large number of foreclosures or other unusual circumstances that would affect property prices within the market.
A real estate appraisers estimate a property’s values by evaluating a number of factors such as location, condition, and unique characteristics. Once the property has been evaluated the appraiser will determine the approximate value by considering the results of the evaluation, other factors, and recent sales of comparable homes. The cost to hire an appraiser will vary, but the average is around $500.
Evaluation by a Realtor
While the testimony of a realtor in regards to the valuation of a property is not admissible in a divorce trial, this is a common method of valuation. A realtor that is familiar with the market can evaluate the strengths and weaknesses of the property and estimate the potential selling price on the open market. This can be the most cost effective method of valuing the property, as some realtors will provide this service for a nominal fee.
Once the value of the property has been determined the next challenge is determining how the asset will be divided. There are several options available to couples and the best choice will depend on your unique situation. A buyout by one spouse is a common way to divide real estate.
If neither party is adamant about staying in the house, selling the property might be a good choice. In a healthy real estate market this can be the simplest solution. The property is sold and any equity is divided.
If the property has negative equity (you owe more than the fair market value) you will have to find a solution for dividing the debt. This might include trying to refinance the property, getting a loan modification, doing a short sale, foreclosure, or filing for bankruptcy. If your property has negative equity, it is imperative that you work with an attorney and financial planner to evaluate all your options and decide on the best course of action given your personal circumstances.
If the couple decides one person will stay in the home, then the divorce decree should state that the person remaining must refinance the property by a date determined by the court. The refinance will remove the other spouse from the mortgage and removing any financial obligation. Usually the spouse that is keeping the house will also need to compensate the vacating spouse for any equity that has accrued.
This is a rough outline of some of the factors and options that are used to distribute a property in divorce. Dividing real estate is complicated and there are numerous ways to configure how a property is split. Every situation is unique and any information found online might not be applicable to your specific circumstances. If you would like more information regarding your unique situation, please give us a call. Our managing attorney, Ken Alan, is happy to answer questions over the phone at no charge. For an in-depth evaluation of your circumstances, we offer an in-office initial consultation for $95.
The first caller has two children and has been divorced for several years. At the time of the divorce, both parties agreed that the support payments would be $222 a month. After the divorce the caller’s ex wife went on the State Support system. The State then tripled the caller’s support payments to $666. The parenting plan requires support payments to continue until the children are 18 or graduate high school, which ever happens later.
The caller’s son dropped out of high school more than 18 months ago, but has recently reenrolled. The caller wanted to know how he can address the situation and have the support payments modified.
Rick advised the caller that his son’s re enrollment in school could be a bit of a shill to capitalize on the extension of child support. Rick explained that the probability of changing the amount of support now is low, but by presenting the situation to the courts, the caller can establish an “institutional memory” that will set the bar for future recourse. If the son doesn’t meet the progress requirements that he said he was going to, the caller can then revisit the modification to reduce child support payments.
Another caller wanted to know how to protect himself from his wife’s threats of divorce. His wife earns more money than the caller and has threatened divorce and to kick him out onto the street. Rick recommended he take action to plan ahead and have a strategy in place to maintain access to money, possessions, and a temporary place to live. You can hear all of Rick’s advice in the clip below. If you need answers regarding divorce, custody, or any other family law issue, please call us at (206) 448-1010.
The minimum amount of time that is required for a divorce to be final can vary from state to state. In some states, like New Hampshire, a divorce can be final in a couple of weeks; other states have a mandatory waiting period that can exceed six months.
A Washington divorce will take a minimum of three months, but many divorces take longer. The waiting period for divorce in Washington State is three months. The waiting period begins when the divorce action is first filed. If both parties agree on all aspects of the divorce, including child custody, division of assets and debts, spousal support payments, and any other issues that are relevant, the a judge can sign their divorce decree after three months, thereby finalizing the divorce.
Unfortunately for many men, the end of their marriage is often not amicable. The result is a divorce process that exceeds six months. Divorces that are contentious will often require not only additional time, but also additional resources. The more complicated the divorce, the more likely you will need to enlist the help of other professionals in addition to your attorney.
The two most common specialists needed in a divorce are: Guardian ad Litem, and a forensic accountant. The more complex your situation, the more likely it is that you will need to enlist additional help.
What do these professionals do?
A guardian ad litem (GAL) is a court appointed advocate for your child (or children). Their job is to protect the interests and well being of you kids throughout the divorce. As an officer of the court the GAL is required to remain independent, avoid conflicts of interest, be informed about the case, and conduct themselves in a professional manner.
A guardian ad litem will be appointed to a case either by request of one of the parties or by the courts decision. The court will always appoint a GAL in cases that involve substance abuse, domestic violence, or any other situation that poses a threat to the child’s welfare.
A forensic accountant is a highly trained profession (frequently a CPA) that uses auditing, accounting, and investigative skills to examine the financial documents and report on those findings in a court of law.
Forensic accountants are used in a plethora of legal disputes. In family law they are most frequently used for valuations of business and retirement accounts. Additionally, forensic accountants can be hired to uncover assets that a spouse may be trying to hide. The more complex the forensic accountant’s investigation, the more time it will add to the length of the divorce.
In the event that a settlement can’t be reached, your divorce will go to trial. When a divorce goes to trial, the case is heard and then a judge determines the outcome. On average, divorces that go to trial can take in excess of one year.
We are pleased to share that for the second year in a row, Goldberg Jones has made Seattle Business Magazine’s list of 100 Best Companies to Work For. Being recognized on this list is particularly meaningful for our firm because employee feedback plays an important role in how nominees are selected.
The 100 Best Companies to Work For list is compiled using survey responses from employees that cover everything from executive leadership to workplace environment. In 2014, thousands of employees from across Washington State were surveyed and the top 100 were compiled into this year’s list.
Our managing partner, Rick Jones, commented on the firm’s inclusion on the list saying, “ We are thrilled to make the list for the second year in a row. Being recognized on the Seattle Business Magazine’s 100 Best Companies to Work For is particularly meaningful because the results are based on input from our team. Our attorneys and staff are the crux of our business and we work hard to provide creative solutions and foster an environment where employee satisfaction proliferates.”
In Washington State a legal separation is not required to obtain a divorce. To further understand this answer, it is important to understand what a legal separation is and how it differs from a divorce.
A legal separation follows many of the same procedures as a divorce. Assets and debts are divided, custody and parenting time are determined, but upon finalization of the legal separation, the couple remains married. Most people who choose legal separation do so because of religious beliefs or to retain specific benefits that are the result of the marriage (e.g. health insurance).
There is a common misconception that a legal separation is a necessary step in the divorce process. In Washington State a divorce does not require a couple to first legally separate before divorcing. In fact, obtaining a legal separation prior to divorcing can prolong the divorce and increase the cost.
Couples that are considering divorce and want to explore all their options before filing for divorce (or legal separation) should consider a trial separation. A trial separation can give both parties time to evaluate their situation while protecting their rights.
Before either party moves out a separation contract should be created. This contract should cover the logistics of daily life such as the ongoing payment of bills, any temporary support payments, who will remain in the marital home, parenting time, and more. It is important to give careful consideration to these arrangements in the event that the separation escalates to a divorce. A trial separation can set a precedent for issues like parenting time and support payments.
The first step in any divorce or separation should be to educate yourself on your rights. Meet with an experienced family law attorney to discuss your options and clarify what is the best course of action for you.