In our March post, we talked about getting ready to resolve financial issues in divorce mediation. Today we will talk about how mediation can help you decide what to do with the family home while your divorce is pending.
When making decisions about the family home, you also need to consider your other assets and debts. In many cases, however, couples need to make arrangements for temporary use of their home before they are ready to address other things. While you are still married, you should decide together how your joint earnings will fund living spaces for each of you. Both spouses remain responsible for ongoing expenses like mortgage payments, property taxes, utilities, and maintenance. A mediator can help you create a temporary separation agreement which addresses these things as the first step in the divorce process.
Before you create your agreement, do your best to assemble information about your assets, debts, income, and expenses. Keep this checklist handy to remind you of everything you need. It is fine to start with a rough list and approximate values. Next, consider how different possible living arrangements will affect your budget. This will help you see what you can afford to do in the present, as well as how a temporary plan might fit in with a permanent plan.
A big benefit of divorce mediation is that it allows you to consider all possibilities, no matter how unique. Most people are happier with solutions they create themselves as opposed to solutions imposed by a judge. People take many different approaches to setting up new living situations during separation. Here are some of the most common:
One of You Stays in the Home
Often one spouse will remain in the family home while the other rents an apartment. Before agreeing to move out of the family home, think carefully about potential ramifications and consult with a family law attorney. Moving out will not affect how the value of the home is ultimately divided, but it could compromise your right to regain possession at a later date.
Moving out can also sometimes indirectly affect parenting rights. Children tend to want to stay in their own homes. If the other parent is the primary caretaker and you move out, this could reinforce a status quo where the children spend most of their time with that parent. At the very least, make sure that before you move out, you have a signed agreement detailing how you will share parenting time. Work out a temporary support agreement based on actual expenses during the separation. A child support calculator can give you a rough idea of which parent may end up responsible for paying permanent support and how much that is likely to be. Mediation is a great forum for resolving disagreements about both temporary and permanent custody and visitation.
You Agree to Sell the Home
Sometimes it is obvious to divorcing spouses that they will not be able to afford separate living spaces unless they sell their current home. If this is your situation, and housing market trends indicate that it is a good time to sell, you may want to sell before filing for divorce. If divorce proceedings are already in progress, a sale can be part of your final settlement agreement. Regardless of whether you decide to sell before you begin your divorce or after it is finalized, be sure to consider how your plans to divide the proceeds will interact with the division of your other assets.
If you purchased the home together during marriage, it is a marital asset. This means that the value of the home will ultimately be divided “equitably,” according to statutory factors set out in New Jersey law. If, however, one of you purchased the home on your own before marriage, or if the home was a gift to one spouse or an inheritance, then the home may be that spouse’s separate property. This does not mean that the other spouse has no potential claim to the financial value of the home, but it does mean that it will be more complicated to determine how to fairly allocate the home’s value. Either way, consult with an attorney before you make a final decision to sell the home. A mediator can also help you decide whether selling the home is the right decision and when is the best time to do it.
You Both Stay Put for Now
Sometimes divorcing spouses decide that paying for a second residence is just not financially feasible in the short term, but they are also not ready to sell the home. Another potential solution is to separate physically within the home. While this is obviously far more awkward than establishing separate living quarters, it can work if there is a spare bedroom available and you are willing to stick to a schedule where each of you has use of common areas at different times. All of this should be set out in your separation agreement.
If you have children, do not let the fact that both of you are still in the home stop you from setting up a temporary parenting plan. One of the best things you can do for your children is work together to take care of them. You do not want to be arguing about who is responsible for what aspects of childcare while you are also trying to resolve your financial issues.
You Alternate Living in the Home
This potential solution still requires you to acquire a secondary living space. It could be an apartment that you take turns staying in or each of you could have a different secondary residence. Staying with a friend or a family member is sometimes a short-term solution. The main reason couples choose to alternate use of the family home is because they have children and wish to let them stay in their familiar surroundings. This is known as nesting.
In our next post, we will look at how mediation can help you decide what to do with a family home when you are finalizing your divorce. Meanwhile, if you are ready to work on a temporary separation agreement that addresses your living situation during the divorce process, contact one of our caring and experienced family law mediators today.