United States: Equitable Distribution Of The Marital Home – Things To Consider That Aren’t Always Considered

Last Updated: July 17 2013
Article by Eric S. Solotoff

Back in April of this year, I participated on a panel for the matrimonial track at the New Jersey Association for Justice Boardwalk Seminar regarding top financial mistakes in divorce.  Whether because nobody likes to admit mistakes or otherwise,  it seemed better to discuss best practices and/or things that could be overlooked.

The following are some of the things I discussed with regard to the equitable distribution of the marital home:

  • Make sure the Marital Settlement Agreement specifies a remedy as to what happens if the spouse retaining the marital home cannot remove the other spouse from the mortgage in the specified time. (Eaton v. Grau, 368 N.J. Super. 215 (App. Div. 2004) ("hold harmless" provision in parties' property settlement agreement did not require ex-husband to remove ex-wife's name from the mortgage)).
  • Consider addressing a credit for principal pay down of mortgage if one party is staying in the house until it is sold. In times when it is taking houses longer to sell, this could amount to a lot of money.
  • Consider addressing a credit for principal pay down of mortgage during pendente lite period. This is not appropriate in every case, especially where the maintenance of this expense reduced the amount of pendente lite support paid, but it is an issue for consideration and negotiation.
  • If there is going to be a deferred distribution of the house, make sure to consider conditions which may accelerate the sale: mutual agreement, cohabitation, remarriage, custodial changes, staying current on the mortgage.
  • Be careful as to stipulations as to values, especially if there is going to be a long time between the disposition of the home/payment of buyout or if there is a trial.   As an example, we handled an appeal where the trial took place in 2008 and the parties had stipulated to a 2007 value.  The case then wasn't decided for more than a year, by which time he market had crashed.  Notwithstanding, the party keeping the house was stuck with the inflated, stipulated value.
  • Be careful about retaining a house in a declining market – especially when you are offsetting it against cash or an appreciating asset and/or especially if you do not plan on staying in the house for the long term.
  • If both parties are not going to be present for the appraisal, make sure you find out what information was provided to the appraiser by the spouse that was present. I had a recent case where the party retaining house provided the appraiser a previously undisclosed home inspection report causing the value to be skewed in her favor.
  • If you are trying to prove the premarital value of home and/or the active increase in value of home, provide the appraiser with photos of before and after, and all documents regarding improvements.  That said, a home inspection may be a good idea for the person retaining the house in determining whether they should keep it or not.
  • If your client is retaining the home, consider judgment searches to make sure that there are no unknown encumbrances on the property.

While not all of these things are applicable in all cases, they are certainly things that should be considered, as appropriate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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