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Real Estate and Divorce


    What Is Real Property?

    Property can be real property (real estate) or personal property. Real property includes land, buildings (including houses), and anything permanently attached to land. Personal property is all property that isn’t real property, such as cash, cars, furniture, and jewelry.

    A mobile home is personal property, not real property. It is titled like a car, boat, or other vehicle. But if you own the lot where your mobile home is located, the lot is your real property.

    Dividing Real Property in Your Divorce

    Marital Property and Separate Property

    All of your marital property and debt will be divided in your divorce. Marital property includes property you or your spouse acquired or earned during your marriage. This includes real property you bought during your marriage.

    In general, separate property includes property owned by one spouse before the marriage or given to one spouse during the marriage. For example, if you own a car that was paid for before your marriage, it is separate property. If your parents die and leave money to you (and not your spouse) during your marriage, that is separate property.

    In some cases, separate property can become marital property. For example, this could happen if you placed inherited money in a joint bank account or used it for joint purposes.

    Real property that was bought and paid for by only one spouse before your marriage may be that person’s separate property. But if you made improvements to the property during your marriage, or if the property is worth more than it was when you got married, the increase in value is usually considered marital property. For example, you own a home that was worth $100,000.00 when you got married and $150,000.00 now. $50,000.00 of the home’s value is marital property and $100,000.00 is your separate property.

    To learn more about the differences between marital and separate property, read Divorce Basics: Dividing Your Property and Debt.

    The Name on the Deed

    Sometimes people think if only one spouse’s name is on a property deed, the other spouse does not own the property or have any right to it. This is not true. Real estate is marital property if it was purchased or paid for during your marriage. It doesn't matter whose name is on the deed.

    It also doesn't matter if only one spouse’s name is on the mortgage. The mortgage only shows who is legally responsible for paying the loan. It doesn't show who owns the property.

    Dividing the Value of Real Property

    If your real property is worth more than you owe for it, it is an asset. If you owe more for your real property than it is worth, it is a debt.

    Whether a piece of real property is an asset or a debt, the judge will divide the value of it in your divorce. If the judge awards one spouse a piece of real property that is an asset, the other spouse may be given other property to balance that award. If the judge awards one spouse a piece of real property that is a debt, the other spouse may be given other debt to balance that award.

    If you and your spouse don’t have many assets besides a home, the judge may order you to sell it. Selling the property may be the only way for each spouse to get a fair share of the marital estate.

    Deciding Who Gets Your Marital Home

    Your Marital Home May Be Important to Both Spouses

    Your marital home is the home where you and your spouse lived together during your marriage. It may be the most important piece of property you own because of its value and your attachment to it.

    Your marital home may be where you live or want to live. Your spouse may also live there or want to live there. Your marital home may be located where your children go to school, and your children may want to stay there. For these reasons, it can be hard to decide who gets to keep the marital home in a divorce.

    Who Can Afford to Stay?

    You and your spouse should think about who can afford to keep the house. Usually the person who keeps the marital home takes on the costs of owning it. This can include the mortgage payments, property taxes, and upkeep. Sometimes only one person can afford these costs, so it makes sense for that person to keep the home.

    Reaching an Agreement

    If you and your spouse can safely meet and negotiate, you may be able to agree about who will keep your marital home. If you can’t agree, you may need a mediator or lawyer to help you.

    If your case goes to trial and the judge decides how to divide your property, one of two things may happen. The judge may either award the home to one of you or order you to sell the home.

    If the judge orders a sale, any money from the sale will be divided between you and your spouse. Or if you owe more than the home sells for, the debt will be divided between you.

    Moving out Prior to Divorce

    It is common for one spouse to move out of the marital home before a divorce is final. Sometimes people think they give up their property rights by moving out. This is not true. A spouse who moves out of the marital home before a divorce still has a property interest in the home.

    Using the Do-It-Yourself Divorce to Divide Real Property

    If you complete the Do-It-Yourself Divorce, you will be asked for information about your marital property and debts, including real property. You will be asked how you want to divide your property. If you and your spouse agree on how to divide your real property, include your agreement terms. Along with your other divorce forms, you will get an attachment to your Judgment of Divorce that includes your agreement about dividing real property.

    If you do not know how your real property will be divided yet, you can leave that information out. The Do-It-Yourself Divorce will create a Judgment of Divorce that doesn’t divide it. Save your answers on the LawHelp Interactive website so you can return later. When you return, enter the information about your real property and how to divide it. You can then print out a new Judgment of Divorce that divides your real property.

    Transferring the Property with a Quitclaim Deed

    Your final Judgment of Divorce should divide your real property, saying which person will keep which property. However, you may need to do more paperwork to transfer specific pieces of property. This is true if both names are on the deed or if the deed is not in the name of the person keeping it.

    Your Judgment of Divorce will not change the names on a deed for you. The judge will not change the names on a deed for you. The person who is not keeping the real estate must sign a quitclaim deed that gives his or her interest in the home to the other person. That deed must be filed with the County Register of Deeds to transfer ownership.

    You can prepare a quitclaim deed using the Do-It-Yourself Quitclaim Deed (after Divorce). Go to the toolkit I Need a Quitclaim Deed to Transfer Real Property to learn more about quitclaim deeds.

    Refinancing Your Mortgage after Real Property Is Divided

    The person who is awarded the real property is usually responsible for paying the mortgage, insurance, taxes, liens, and any other property costs. The Judgment of Divorce may require that person to refinance it in his or her name alone. But it may not be realistic to enforce this requirement. Refinancing might not be possible if the property is worth less than the amount of the mortgage, if the person required to refinance has poor credit, or for other reasons. You can still ask for this, but you should realize that it may take time or may not be possible.

    Your Judgment of Divorce will tell each of you to complete the documents needed to transfer the property and refinance. If either spouse fails to do this, the other person can file a motion asking the judge to enforce your Judgment of Divorce.