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Dividing Real Estate in Divorce

By Fred Dunsing on February 12, 2020

A model home on stacks of coinsIf your marriage isn’t working and cannot be salvaged, it’s important to speak with a divorce attorney from Dunsing, Deakins & Galera, LLC. Our lawyers have helped countless couples from the Denver and the Vail Valley, CO areas, providing much-needed insight into the divorce process as well as the division of property and child custody matters.

When spouses own a home, dividing the value of a house in a divorce can be tricky. Both spouses could have deep personal attachments to the property and legitimate claims for how it should be split. Let’s discuss the basics of this matter below.

Is the Real Estate Separate or Marital Property?

That depends.

If the home in question was acquired during the marriage, it is usually considered marital property owned by both spouses, no matter whose name is on title. If the real estate was acquired prior to marriage, the value at the date of the marriage may be considered separate property with only the appreciation in value during the marriage considered to be marital property.  It may also depend on whether the spouse who owned the home prior to the marriage placed the other spouse's name on the deed to the house.  

That may seem cut and dried, but there are complications. Improvements to the home by the married couple and who paid the monthly mortgage payments could lead to disputes over the property being separate or marital.

Checking Your Prenuptial Agreement

If you have a prenuptial or premarital agreement, it’s important to check what the agreement says about real estate, marital homes, and the classification of those assets. In some cases, the prenuptial agreement can clear up disputes over home ownership and what is classified as separate property.

How Marital Real Estate Can Be Divided

There are two ways that real estate can be divided in a divorce:

  • Sell the house and split the net amount received between spouses
  • One spouse keeps the home, refinances, and removes the other spouse’s name from the mortgage

It’s also possible for a divorced couple to retain co-ownership of a home temporarily until an arrangement is reached later on down the road, even after the divorce.  It is also not unusual to use the equity in a house to equalize the marital estate via offsets to the division of the equity.

Determining the Value and Equity of the Home

The first step in dividing real estate in a divorce is having the value of the house professionally appraised. This will determine the market value of the home and how much each spouse will receive depending on the arrangement that is reached.  Appraisal is often unnecessary if the house is going to be sold.

Negotiating the Division of Property

Once the value of the home has been determined, the spouses can negotiate the best way of dividing the property. If the spouses have children together, the ownership of the home could factor into child custody decisions.  Division of the equity in a house can also affect how other pieces of the marital estate are divided. Some couples are able to figure out the details amongst themselves, while others may want to resolve these matters through lawyers.

Mediation for Disputes Over Real Estate

If the spouses cannot come to an agreement about how their property should be divided, it may be a good idea to work with a mediator. This third-party can help both sides reach a compromise that represents their individual best interests as well as the best interests of any children.

Mediators help prevent the need for court battles, and can help keep emotions even-keeled throughout the process.  These days, most judicial district require mediation before the court will set a case for trial.

How Our Divorce Lawyers Can Help

Going through a divorce can be extremely difficult, and it’s hard to maintain perspective while you are in the thick of the process. Working with a divorce attorney ensures you have someone on your side who will help you understand what choices are most ideal. They can help fight for you, and also help you keep your financial future and your children’s needs in mind.

Learn More About the Division of Property

If you need more information about dividing property in a divorce and other matters related to the end of a marriage, be sure to contact our team of divorce and family law attorneys. You can reach the team at Dunsing, Deakins & Galera, LLC in Denver by calling (303) 758-8981, and in Avon by calling (970) 343-0023.

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