You’re working in the garden and yard of your home. You have spent countless hours tending and manicuring the lawn, bushes, shrubs and flowerbed. You are deeply attached to the home. Then your spouse tells you that he or she wants a divorce. You suddenly realize that something will have to be done with the home which, for most couples, is your largest marital asset. You contemplate whether you are able (or even want) to buy out your spouse’s interest. Then you must ask yourself if you are able to maintain the home — including mortgage, taxes, utilities, upkeep and maintenance — solely on your salary after the divorce. If you have children, do you want to keep the home until your youngest child has graduated from high school? Will your spouse agree to delay a sale? Finally, if you know you cannot afford the buy-out, you ask yourself if you want to sell the house or be bought out by your spouse.

Just what do you do?

It’s important to try to separate your emotional attachment to the home from the economics of the divorce, separation and division of martial assets. If your ownership of the home is typical, you and your spouse own it by the legal status known as Tenancy by the Entireties. This form of ownership is unique to married couples and it means that you each own an equal undivided interest in the whole of the property. Neither of you can sell it without the agreement of the other. If you’re so attached to the home that you can’t imagine selling and moving and you equally can’t stomach your spouse having the home at the end of the divorce, then you may want to consider mediating the issue through one of several processes that include formal or informal mediation or use of the collaborative law process. Failing these options or coming to a private agreement, the Court in Virginia has the statutory authority to make a monetary award to you or your spouse for your interest in the home or order the property to be sold as part of a divorce trial where the equitable interests of both parties must be considered by the Court.

So back to the original question: What do you do to resolve this issue? First, you need to review how you came to own the property. Did either of you use separate, premarital or inherited funds for the down payment? If you did, and you can trace your separate investment back to its source, then you may be able to reduce the remaining equity in the home, by your separate share, and determine if you can afford to buy out your spouse. That still leaves the question, do you want to buy out your spouse’s interest?

Your next analysis and decision should be the hard one: the economics of ownership by going solo after the divorce. As you work your way through the options, you will need to consider the other financial issues inherent in any divorce including: whether spousal and/or child support are going to be paid; how will the division of other assets, including cars, be allocated; the payment of debts, including credit cards, be assigned, and so forth. Oftentimes, the assistance of an experienced family lawyer — who can also act as a counselor and not just as a litigator — can offer insight and assistance in this analysis and allocation process.

If you have any questions about divorce or other family law matters, please contact Richard Gray at rgray@offitkurman.com or 703.745.1851

ABOUT RICHARD A. GRAY

rgray@offitkurman.com | 703.745.1851

Richard A. Gray focuses his practice on Family Law. Drawing on his undergraduate and graduate degrees in psychology, Richard is sensitive to how these feelings can affect important decisions that a client is trying to make. Knowing that divorce cannot change the past he directs his clients to the future and helps families rebuild their lives with dignity and emotional stability. Rather than spending unnecessary resources prolonging conflict, Richard works with clients to find solutions for moving forward and maintaining civility with each other, especially for the sake of children.

Richard is an experienced litigator, yet he always looks for ways of reaching an agreement outside the courtroom. By educating his clients on the full continuum of divorce options, including collaborative law, mediation and litigation, he enables them to be in control of their decisions. Clients appreciate his one-on-one involvement with their cases and the direct access he provides. Richard listens carefully to clients’ goals and strives to achieve them. As a voice of reason he will also advise his clients if their goals are unreasonable or will cause great harm to the parties’ relationship.

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