The house we purchased in '98 for $400K is now worth ~$900K. Originally my spouse thought it made sense to sell the house and for us to split the proceeds, but now she plans to stay in the house. My assumption is that the courts would allow her to stay in the house with the children if she can pay me my share of the proceeds - though I don't see how she'd come up with that kind of money. What's likely to happen?
If your wife is going to possibly buy-out your interest in the house, I would suggest that you have the house appraised by an appraiser who is a member of the Appraisal Institute and the American Society of Appraisers. I would also make sure that she can qualify to buy you out. Often times in divorce cases, the parties agree to a buy-out and the title to the property is transferred to one spouse. Meanwhile both spouses are still on the loan documents and the agreement provides that the spouse who buys the other would will hold him/her harmless and indemnify him/her if the lender goes after him/her. That is a rather risky thing for you to do because if your spouse does not pay the loan, it will impact your credit and the lender can come after you for the payments. Your only recourse at that point will be to go after your spouse for reimbursement of payments should could not make and which caused the lender to go after you.
If she cannot afford to buy you out, the property will be sold and the proceeds divided.
Please note that if she can afford to buy you out, it could be to your benefit because there will be no costs of sale and she will have to buy you out without paying those costs of sale. Furthermore, when she eventually sells the property, she will have to pay capital gains on the sale (which she cannot deduct when she buys out your interest). Moreover, it may be good for the children to have continuity in residence in which they live.
If you defer the sale and let her continue to live in the property, it may have serious consequences later because she will be paying down the mortgage (for example) with income she earned after you separated and which is considered her separate property income (including child support and spousal support she receives). This will enable her to have more of a financial interest in the proceeds of the sale when it ultimately sells. That is just one risk of entering into such an arrangement.
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.
Family Law Attorney
The court can allow either party to buy the other party out, or order the house sold and the proceeds divided. Once she buys you out (including getting your name off the mortgage, which means re-financing) then she can keep the house if she wants, sell the house, or do whatever else she wants with it.
The court can, but usually will not, defer the sale of the house for the benefit of the children for a specific time, and adjust child support accordingly. The party staying in the house would be required to maintain mortgage, taxes, and insurance on the house.
You should review all the facts of your situation with an experienced family law attorney, so you know your options.
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