You can't cut your house in half, so what do you do with it?

Your home was the center of your family life during your marriage. Now that you and your spouse decided to divorce, you face the challenge of figuring out what happens to the marital home.

Dividing the house in the literal sense isn't possible, so you will need to come up with another solution. Each of the property division choices for a home requires careful consideration before moving forward.

What are the choices?

The first issue to address is whether the home is part of the marital estate or is the separate property of you or the other party. If you purchased the home during the marriage, it remains part of the marital estate. If one of you purchased it prior to the marriage or with funds belonging only to the owner, or the title is in only one name, a Virginia court could rule it as separate property. In the alternative, a portion of the home's value could be separate and the rest marital.

If the home is part of the marital estate, you have the following options during property division:

  • You could sell it and split any proceeds remaining after paying off the mortgage loan or loans.
  • One of you could keep it in exchange for assets of comparable value.
  • You could continue to own the home jointly.
  • The one who wants to keep the home could buy out the other party's share of the home. How the buyout occurs may be up for negotiation.

Regardless of the route you and the other party choose to take, you need to negotiate the terms and draft a written agreement in order to protect your rights and have recourse if the other party fails to adhere to it. The two of you are free to design your own agreement as long as one party does not come out at a disadvantage. Signing your agreement and getting the court's approval is not the end of the process, however.

Regardless of the choices you make, you and the other party will need to take other steps in order to satisfy the terms of the agreement. For instance, if one of you will keep the home, you will need to legally transfer the home into the name of the person who will be the sole owner. If you decide to sell the home, you will not need to go through that process. Throughout the process, it is vital to protect your rights to help ensure that you receive all you are entitled to during the divorce process.

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