Mediation and the Family Home – Part II

In our last post we talked about mediation and what to do with your family home during your divorce. Whatever you decide to do on a temporary basis, however, if you are like most couples who choose mediation, it will not be too long before you need to move on to making a final decision about the home.

Options for the Family Home in Divorce

The most popular alternatives for what to do with a family home on final judgment of divorce include the following:

• The parties immediately sell the home and divide the proceeds.
• One spouse keeps the home and the other immediately receives other marital assets to offset the value.
• One spouse “buys out” the other with a contract providing for installment payments over time.
• The parties continue to own the house jointly for some predetermined length of time during which one spouse keeps exclusive possession of the home. The time often extends until the youngest child reaches a certain age or leaves for college. At the end of that period the parties sell the house and divide the proceeds.
• The parties continue to own the house jointly for a predetermined length of time while the children stay there and the parents alternate living there (nesting). After the children have reached a certain age, the parties sell the house and divide the proceeds. The children then start spending time at each parent’s new home.

Mediation Provides Maximum Flexibility

If this decision is left to a judge, the judge might award the home to one spouse, or might order the parties to sell it and divide the proceeds. While judges sometimes order more creative solutions, they do not usually have the time to consider all potential alternatives. The beauty of mediation is that it leaves the two of you free to consider all possibilities and then spell out the details in your Marital Settlement Agreement. Mediation also allows you to consider issues that may be closely intertwined with the home at the same time. These can include questions about employment, other assets, and/or children’s needs.

Emotional Attachment Can Fuel Mistakes

Many people have an emotional attachment to the family home. It is important not to let such feelings get in the way of reaching common sense solutions that will be best for your future. Common pitfalls to avoid when deciding what to do with a family home include the following:

• Thinking that all assets are equal.

  • Chris and Sarah have $325,000 in joint pre-tax retirement assets; $50,000 in cash; and a home currently valued at $425,000. They purchased the home several years ago for $300,000, and it currently has a $200,000 mortgage balance. Sarah proposes that she take the house with the mortgage and $75,000 of the retirement assets, leaving Chris with the remaining retirement assets and the cash. While this technically gives $300,000 of value to each party, it is not really an even exchange. Money in the retirement account will not be taxed until withdrawal and will then be treated as ordinary income. If Sarah needs to sell the home in the future, however, she may have to pay capital gains tax on some of the increase. For example, on a sale for $750,000, there would be capital gains tax on about $200,000 ($750,000 – $300,000 basis – $250,000 single homeowner capital gains exclusion).

• Not planning adequately for future needs.

  • Another consideration for a spouse who is thinking of trading away retirement assets for a home is the difficulty of rebuilding retirement assets. A larger home is nice to have, but losing retirement assets can set a mid-career person back many years in preparing for the future.

• Failing to consider the true costs of keeping a home.

  • Sarah is committed to keeping the home, even though selling it would give each spouse a net of $112,500 to spend on rent or on the downpayment for a new home. Sarah does not want to rent or downsize, and since the mortgage payment on a new smaller home would be almost as much as the current mortgage, she believes that it makes more sense to keep the current home. There are a few things, however, that she has not considered, including the following:
    • The property tax on the smaller home would be at least $200 per month lower.
    • The utility payments on the smaller home would also be about $200 per month less.
    • Maintenance expenses on the smaller home for things like painting, etc. would also be lower.
    • Renting would eliminate the property tax and most of the maintenance expenses completely and would also result in lower utility costs.

A Financial Professional Can Provide Valuable Help

Scenarios like the one above often require the assistance of a financial expert to estimate the true future value of each asset. A financial specialist in a divorce case is usually an accountant or financial planner who has completed additional training in resolving common divorce issues. The expert may have a certification, such as “Certified Divorce Financial Analyst” (CDFA). If you and your spouse have chosen mediation, you can decide whether it makes more sense for each of you to use your own financial planner or to hire one joint expert. A joint expert will help both of you understand the potential tax effects and other financial implications of your planned property distribution and other financial aspects of your divorce.

if you and your spouse are ready to work on the final disposition of your property in divorce, contact one of our caring and experienced family law mediators today.