Dannenbaum Law Firm, PLLC

What Should We Do About The House In A Divorce? Part 1 of 4

You and your spouse are getting a divorce. You and your spouse must decide what to do about the family house. There are many options. The disposition of the family home can be a complicated issue. You must consider many factors before you agree on what to do about the house.

One option is to place the house on the housing market for sale to a third party. You need to come up with a mutually agreeable plan to sell the house. For this, you need to be able to make many decisions with your spouse. This requires cooperation. Sometimes you both have the same interest-maximizing the sale's price so that you both have more funds at sale; other times you may have different interests-one of you may want to hold out for as long as it takes to get the maximum sales' price, while the other spouse may want to get the house sold immediately to get closure, and will sacrifice the sale's price for an expeditious sale. One of you may want to put a lot of money into maintenance, repairs, improvements to maximize the sales' price, while the other spouse may just want to sell as is.

Many Issues need to be discussed and agreed on: who will be the realtor; how do you select a realtor if you can't agree on a realtor; In the event you cannot agree on a real estate agent, then each party may select a real estate agent, and the two real estate agents chosen by the parties shall together select a (third) real estate agent who shall list the residence for sale. How much will the initial listing price be; should you get an appraisal from a certified real estate appraiser to determine the initial listing price or a market analysis by your realtor; how will the initial listing price be readjusted if the house does not sell (e.g., for every 60 days the house is on the market, you shall reduce the listing price by 10%); what do you need to do to get the house ready for sale; how are you going to best present the house-will you both move out; move all furniture and belongings out; have the house staged. What do you have to do in terms of maintenance, repairs, and improvements to make the house get the highest price; how will you pay for these costs; who will reside in the house during the sale; how will the costs of the house be paid until sale and settlement of the house---these costs include mortgage, taxes, insurance, utilities, upkeep; monthly bills such as electric, gas, water, trash, and other utilities, as well as the Home Owners Association (HOA) Fees and Assessments, replacement or repair of appliances and structural problems. How will you pay for significant maintenance and repairs, including necessary replacement or repair of appliances and structural problems. Who pays to costs when one party is negligent, and causes a problem with the house that requires repairs during the sale period. When do you put the house on the market; do you take the house off the market during a slow period and then place it back on the market at a more optimum time; who will be responsible for keeping the house in a showable condition; if one party moves out during the sale, can he or she have the right to enter the house on a regular basis to view whether the house is in proper order for the sale; do you agree to follow the realtor's recommendations; what type of sales' contract will you agree to accept (e.g., at least a non-continent (except for obtaining financing) offer of at least 90% of the listing price); will you agree that while the house is on the market, you will maintain a lockbox on the front door and a "for Sale" sign in the front yard, and will keep the house in a clean, "showable" condition.

When going through a divorce, emotions and anger can be high. The house and the selling of the house may trigger difficult emotions. The stress of having to move can be difficult. However, to get the most money from the sale of the house and to get the house sole, spouses have to try their best to remove the emotions from the situation and try their best to treat the sale of the house like a business deal, such as the breakup of a business partnership. You and your spouse need to sit down with the realtor, mediator, and lawyers and resolve these issues. It is best if all issues are addressed and agreed upon in a formal written agreement signed by both parties. That way, you don't have to spend the time, money, energy by having to decide these thorny issues piecemeal as they arise. Rather, you can simply read the written agreement to determine what to do. The more issues and contingencies you include in your agreement, the less you have to interact and attempt to reach agreement with your spouse.

In conclusion, you would think both spouses would have a common interest--to sell the house at the best possible price within the shortest period of time on the market. Isn't that the goal of every home seller. In divorce case, that is not necessarily the case. One of you may want to delay the sale as long as possible so that he or she can continue living in the house with the other spouse having vacated but still paying one-half the bills. This is all the more reason to iron out all issues relating to the sale in a formal, written agreement signed by both parties. Get a divorce lawyer to negotiate and draft that agreement.

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