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Mediate.com

Dividing the Marital Home

by Joy Rosenthal
December 2017

Joy Rosenthal's Mediation Blog

Joy Rosenthal

One of the things that needs to be decided in a divorce is how you’re going to divide up what you own together, and one of the biggest assets that couples usually own is their home. There are several choices as to what happens to the house (or condo or co-op):

  • You can sell the house and divide the proceeds.
  • You can continue to own the house together, even if one person stays there.
  • You can buy out your spouse’s portion.
  • Your spouse can buy out your portion.

How do you decide who gets what?

Let’s say you sell the house to a third person, so you know the sale price. First, subtract the amount that’s owed on the mortgage, any transfer or capital gains taxes, and closing costs.

Then subtract the contributions each spouse might have made from separate property for the down payment.

The remaining part is your joint equity in the house. You decide how you will split it (usually 50/50, but not always).

Here is an example: Let’s say that Bonnie and Clyde own a house together that they sell for $500,000. They have a mortgage for $160,000, and the closing costs, taxes, etc. will be $40,000.  Bonnie contributed $50,000 and Clyde contributed $100,000 when they purchased it.

Here is the math:

Equity = $500,000

Minus mortgage and closing costs ($200,000) = $300,000

Minus $50,000 to Bonnie, and $100,000 to Clyde = $150,000

Equity divided by 2 = $75,000 each

So Bonnie ends up with $125,000 (75,000 + 50,000) and

Clyde ends up with $175,000 (75,000 + 100,000)

Now, what if you are NOT selling to a third party, but one person wanted to buy out the other’s share? In the above example, Bonnie would have to come up with $175,000 to purchase Clyde’s share, or Clyde would have to come up with $125,000 to purchase Bonnie’s share.

Of course, real life often gives us a more complicated scenario. And notice that there are some things that are NOT included in the above example — such as money one partner laid out for household expenses other than the mortgage, or for non-monetary contributions to the home that increased its value. In that case, the division above may seem one-sided.

This is an excellent reason to choose mediation or collaborative law: to hand craft an agreement for your unique situation and to create something that is fair (and workable) for your family!

Biography


Joy S. Rosenthal, Esq. is a compassionate mediator, a skilled negotiator and an intelligent litigator with extensive background in the private and public sectors. Joy served as a Staff Attorney at the Legal Aid Society's Juvenile Rights Division for nearly 10 years, where she represented hundreds of children and teenagers in foster care, child welfare, custody, adoption, PINS (Person in Need of Supervision) and delinquency cases in the Bronx and in Brooklyn. Joy was honored to be selected for a one year fellowship at New York University School of Law's Family Defense Clinic, teaching law students to represent parents in child welfare proceedings. Joy founded Rosenthal Law & Mediation in 2006. The firm's practice centers on family and estates law, as well as family-based mediation. In addition to her private practice, she mediates custody and visitation disputes for the New York City Family Courts and serves as a Guardian Ad Litem, protecting the rights of youth and the disabled in New York City Surrogates Courts. She also serves as President of the Board of Directors of the Family and Divorce Mediation Council.

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