Married people not only share their lives emotionally and have children in common, but often, jointly own property and assets. Joint ownership of a home, for instance, can make a married couple feel connected to each other, like partners in life, even if one party contributed more financially to the house. However, given the high rate of divorce, this unity can often sour, and issues of jointly-owned property can make a divorce complicated and acrimonious.
The way jointly-owned property should be divided, or in some cases, held equally, after a divorce may vary according to the laws of particular states, who contributed more, if one spouse was “at fault” and other factors. Shari-Lynn Cuomo Shore, who has a practice at the Wolf & Shore firm in Hamden, Connecticut, has vast experience in settling issues of joint property prior to and after a divorce and discusses property issues that arise in divorce proceedings.
Many people think that, in a divorce, property is usually split 50/50, but this is not always the case. What are some cases in which the property should be split down the middle and cases when it shouldn't be divided this way?
Shari-Lynn Cuomo Shore: While the general presumption is 50/50, the actual distribution of property depends on a variety of issues which may vary state by state. For instance, contribution to said property can affect the distribution, the length of time of the marriage, whether or not there is a prenuptial agreement (and whether that is valid) and whether a party is at fault for the marriage. To clarify, many states are “no fault” marriage states, but if the dissolution proceeds to trial and evidence of, for example, an affair, or abuse surfaces, often the offending party is considered “at fault” and gets less than one-half of the marital estate.
One example where property would probably be split 50/50 is in the case of a longer marriage (say for example, 20 years or more), where either both parties worked throughout the marriage and contributed to the upkeep of the household, or even where one party worked full time but the other took care of the house, raised the children, etc. An example of a case where the property may not be equally divided could be an instance in which one party entered the marriage with large amounts of money and enough furniture to furnish the entire house. Even though those assets would become marital property at that point, if the funds were never accessed by the other party, or the furniture wasn’t used, desired, kept up, etc, by the other party, especially in a shorter marriage, the party who entered the marriage with the assets may also leave with such. Of course, these are generalizations and each case must be analyzed individually.
Is it the best option to sell a jointly owned home and split the money from the sale? What if the couple wants to hold onto the home and jointly own a home after a divorce? How can spouses protect themselves if they jointly own property after a divorce?
SCS: In general, it is not in anyone’s best interest to own property with a person they have divorced. While there may certainly be exceptions, people generally obtain a divorce because they cannot agree on major issues, have different viewpoints, etc. Therefore, it would not be an intelligent decision to own anything together or have any type of investment/business venture in common. Depending on the value of the house, the desires of the divorcing parties and whether or not there are children, selling a jointly owned home and dividing the proceeds may be the best option. However, if there is very little equity in the house, or if one party desires to stay there, especially if it involves moving school age children versus keeping them in the same school district, it may be a better option for one party to retain the home. If this is the case, the party vacating the residence should either sell or quit claim his or her interest to the other party (again, depending on the equity in the home). And then if both parties are listed on the mortgage, the parties should agree on a short time frame in which the party retaining the home will be required to refinance so that the mortgage is then solely in his or her name. This will then prevent the party vacating the residence from having a debt/liability for a property in which he or she has no interest.
Do long-term separations complicate things in terms of property that is acquired during the separation but before the divorce?
SCS: A long-term separation may complicate division of property that is acquired during the separation period but before the divorce for a few reasons. For example, separated parties often begin using separate bank accounts, hiding assets, etc. The problem with this is that the parties are still technically married and thus, the property obtained (at least in most states) during this time frame is still a part of the marital estate, but the parties are more likely to fight for it and/or want to retain it individually.
If a couple still owns property after a divorce, are there legal problems that can arise when one party wishes to renovate or add onto the property? How is this dealt with?
SCS: While I would not recommend this option, yes, problems can certainly arise. If for some reason, the parties decide to jointly own a property after a divorce, there should be sufficient terms in the divorce decree to address concerns such as renovations, additions and even the eventual sale of the property. Essentially, if the parties cannot agree on these terms, if the divorce decree did not provide for them, or if they wish to do something other than what the divorce decree mandates, they would have to reopen the divorce with a post-judgment matter and ask that the court enter an order. Alternatively, some people seek mediation prior to going back to court to address these concerns and hopefully come to an agreeable resolution.
What are other issues about jointly owned property in a divorce that you see often? What are your thoughts as to the best resolutions?
SCS: There are all kinds of issues with jointly owned property that occur in a divorce, but there is not necessarily a best resolution, because it is all dependent upon the specific facts of the case. We always tell our clients that the court is concerned only with the best interest of the children, not with what the parents want. That being said, most attorneys, and nearly all courts, will not “litigate pots and pans.” We advise clients that they should take a step back from the situation and try to view it as a neutral third party and really evaluate their priorities. Sometimes, there are sentimental reasons for retaining property, sometimes there are financial and other times, it is simply to “get back at” the other party. Once a client can assess the reasoning behind wanting to retain something, we can then help them figure out how they should fight for it and if it is, in fact, a priority.
Alex Levin is a writer for Seeger Weiss, a plaintiff's firm specializing in consumer protection law.