Dividing Real Estate in Divorces

Separate Interests in Property

To start, it is necessary to determine if either spouse has a distinct interest in any real estate. For instance, if one spouse owned real estate prior to the marriage or inherited it, that property may be considered separate rather than community property. If either party asserts that a property is separate, they will need to trace its ownership to counter the presumption that it is community property. Any separate property will be retained by the spouse who owns it, but if joint funds were utilized to improve or maintain the property, any appreciation in its value may be subject to a claim for reimbursement of community property.

Selling Jointly Owned Real Estate during Divorce

When dividing real estate in a divorce, it is necessary to determine the property's value through an appraisal, regardless of whether both parties intend to keep the property or agree to sell it.

Various factors need to be considered when deciding whether to retain the property or receive half of its value as a payout. These factors include financial stability after the divorce, ability to manage the property's expenses, and potential future appreciation or depreciation of the property's value. Selling the community property and dividing the proceeds after settling any outstanding mortgages is the most straightforward approach for dividing the value of the real estate. However, this option requires both parties to find new residences.

Retaining Jointly Owned Real Estate during Divorce

The most common type of real estate divided during a divorce is the marital home. If one spouse wishes to stay retain the real estate and stay in the marital home, the dividing process becomes more complicated.

To transfer ownership of real estate from one spouse to the other during a divorce, a Special Warranty Deed must be executed by the spouse giving up their interest in the property and filed with the county clerk where the property is located. If there is an outstanding mortgage on the property, it will need to be refinanced to remove the name of the spouse who is no longer an owner. Neglecting to refinance the mortgage could make the non-owner spouse liable for any remaining debt on the property, even if they no longer have any ownership stake in the property.