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Navigating a Home Transfer During a Virginia Divorce

David Matine • Aug 05, 2022

One of the most contentious issues that must be resolved during a divorce is the division of the marital estate. Whenever there is money and property involved, it can trigger emotional responses. One question that often causes these types of feelings is which spouse gets to keep the house that the couple is currently living in?

If you are considering a divorce in Virginia, the skilled family law attorneys at Buck, Toscano & Terezkerz are here to help. Navigating the transfer of a home and similarly important issues may require some extensive negotiations and in the worst cases, you will need to be ready to effectively argue your case in front of the court. Our lawyers thoroughly understand these issues, and we work closely with our clients toward the most favorable outcome possible.

Is Your Home Part of the Marital Estate?

Before we discuss navigating your home transfer during the divorce proceedings, we first need to determine whether or not the home will be considered marital property. In general, any property that was acquired during the marriage will likely become part of the marital estate, but there are exceptions to this.

One common exception is when a house is inherited or received as a gift by one of the spouses after the couple is married. When this is the case, the court will likely consider the home the property of the spouse who received it.

But what if one of the spouses brought a home into the marriage or inherited the house and it had a mortgage on it? When this happens, things can get a little murkier. For example, if marital funds were used to make mortgage payments and/or do some home renovations, then the court might award a share of the home to the other spouse.

There are other scenarios in which the status of the marital home might not be clear-cut. These generally have to do with cases in which there is co-mingling of assets to the point where it is not practical to try to untangle it.

Options for Home Transfers During a Virginia Divorce

Assuming the home is determined to be marital property and belongs equally to both spouses, there are a few different ways that the couple can resolve this:

  • One spouse keeps the home. This is a common option when there are children involved and the spouse with primary physical custody wants the kids to remain in their home in order to maintain some stability during an uncertain process like a divorce. If the spouses decide to go this route, then the spouse who retains ownership of the home will need to compensate the other spouse based on the joint equity that they have. Perhaps there is another large asset that can be traded for the home, or if other assets or funds are not immediately available, maybe a payment plan can be worked out.
  • The spouses retain joint ownership of the home. There are times when it might make sense for both spouses to remain as part owners of the home, even though only one of them is going to continue living there. This might be the best arrangement in the case of children as we talked about in the previous point and when it is not financially feasible for the spouse who wants to live in the home to buy the other one out. It is important to keep in mind that with an arrangement like this, there should be some level of trust between the divorcing spouses because they are going to own a sizable asset together.
  • The spouses sell the home and divide the proceeds. If neither spouse wants the home and/or it does not make financial sense to keep it, then they can sell the home and divide the proceeds that remain after paying off the mortgage. This is generally the smoothest and easiest way to deal with the marital home during the divorce but be sure to check with a tax professional about potential capital gains tax exposure after the sale.

Contact Our Reputable Virginia Divorce Attorneys  

Divorces can get complicated, especially when there are assets like the marital home at stake. At Buck, Toscano & Terezkerz, we will work with you to determine your top priorities, so we can advocate for a divorce settlement that fully addresses the issues that are most important to you. Call our Charlottesville office today at (434) 977-7977 or send us an online message to set up a personalized consultation with one of our attorneys. We look forward to serving you!

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