Should You Keep Your Marital Home After the Divorce?

When you are getting a divorce and own a home with your spouse, you have a few options. One of you may decide to keep the marital home or you can sell it and both move on purchasing or renting another residence. You may love your home, your neighborhood, and want to keep it to provide consistency for your children. Before making any final decisions or trying to negotiate to keep the home for yourself, think about this list of questions:

  1. Can you buy out your partner? As your divorce moves forward your house will be appraised, and the equity you have in the home is up for equitable distribution. If you would like to keep the home you will have to “buy out” your spouse giving them an amount of cash (or equivalent) or negotiate in a unique way.
  2. Refinance the mortgage – can you get a mortgage on your own. You will have to prove that you can so your ex will be removed.
  3. Can you afford the monthly bills? As you know, owning a home can be expensive and goes beyond the monthly mortgage payment. When you factor in taxes, homeowners insurance as well as association fees, cable and power you may be beyond your budget.
  4. Can you afford to maintain the home? When something in your home breaks, the roof starts leaking or a toilet overflows you may need to call in a professional to fix it. These can be costly. In addition to the major repairs all homes require minor repairs every now and again and you must have the funding. Not keeping up with repairs will cause your home to repreciate in value.
  5. Lastly, can you handle it? Maintaining a home with a partner is one thing, what about on your own? If you have significant financial resources you can certainly hire professionals to help you maintain it, but if you have to do it on your own do you have the time, know-how and ability?

Many times parents feel an emotional tie to keep the marital home for the stability of their children. They know their kids are going to go through a bit of an upheaval and feel guilty. In many ways keeping the marital home can cause significant problems if you are unable to financial or physically handle the required maintenance. While you may be emotionally tied to your home it is important to make this decision with an eye on finances as well.  And remember, having financial stability for yourself provides stability for your child.  

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Helping Your Children Move Between Two Homes

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When you divorce with children, you are going to have to transition them between two homes. For a minor child of any age, this can be not only traumatic when it starts but also feel like a constant state of flux. It is critical that you children know they are loved by both parents, have space in your home, and are made to feel comfortable. How can you make this as easy as possible for them? Make sure you have duplicate supplies, take some responsibility, and be reasonable when they forget important items from one home.

Have duplicate supplies
Cosmetics for teenage girls, graphing calculators, clothing, or soccer balls – making sure each house has favorite and necessary items can be important. While this may seem redundant, having certain items in each home will ease the burden of packing on the child and anxiety that they might forget something important. While this can cost you a few extra dollars the comfort it provides to your child can be invaluable. If your child wears a uniform to school, make sure you each a set at your home including any shoes. You may even want to ask if you can get two uniforms if your child is in sports.

Put the burden on the parents
While living in two homes is common these days, it is not your child’s fault they have to move back and forth so make sure that you do the heavy lifting for them. Help them pack, maybe develop a list for them to use, and offer to pack the car with them. If they are switching homes after school coordinate with the other parent to ensure you can drop-off or pick-up their belongings.

Be reasonable when they forget necessary items.
When your child leaves a textbook or snow boots at the other parent’s house remain calm. While children of divorced parents tend to be more organized due to the moving around they are still young and will forget every once in awhile. They also need to feel that you will help them have the items that they need for their day. If you have a problem with textbooks contact the teachers – they are usually happy to provide extra copies.

Having to move belongings on a regular basis can be troublesome for some kids. While you and your ex may both provide loving environments, remember it is not your child’s fault they have to travel between two homes. Going out of your way to make them feel comfortable and helping also negotiate packing will help. Children crave a stable environment and parents should do what they can to provide that for them.

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The finances of your divorce – Three Important Parts

During your divorce every nook and cranny of your financial picture will be evaluated. Together we will take a look at the finances you brought into your marriage and then what you and your spouse accumulated together. It is very important that you have a full understanding of your financial picture and copies of all financial documents.

What did you bring into the marriage?

Before you got married you may have had assets including investments, property and savings account. If you kept them solely in your name and they did not increase due to the influence of your spouse, they are yours to keep. If you commingled these assets with your spouse, meaning you added his/her name as an owner, then they are considered a contribution to the marriage and the court will determine how to allocate them. Some counties will apply their own methodology for determining what portion you will get credit back for this contribution based on the date it was contributed and time that has passed. The increase in value of a separate asset is always marital. Usually we look at each asset on a case by case basis. It is important that you provide your attorney with the details of any contributions you made either from before the marriage or through an inheritance and it is also important to have a paper trail of these transactions.

What assets did you build together?

The assets of a marriage are simple to state but can be difficult to calculate. For instance, if you had a 401k before your marriage but continued to then add to it during your marriage, your spouse is entitled to share in the accumulation since the date of your wedding. If you and your spouse purchased a home together the current equity is up for consideration.

Make copies of your statements

A very important part of your financial situation is knowing your current financial situation. When you decide to divorce (or find out you are getting divorced) start to immediately make copies of financial statements. Do not let your spouse try to hide money or claim

Just as every couple is different so is every divorce. You have the ability to negotiate each part of your divorce to ensure you are getting your share of the assets. Additionally, based on other factors such as income and potential income we can always negotiate in other ways as well – trade-offs are common. An experienced divorce attorney will be able to explain your options and negotiate creative solutions for you.

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Treatment of Veterans Benefits

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Former military members may be eligible to receive a number of different veterans benefits from the Department of Veterans Affairs (VA). Possible benefits include disability compensation, pension benefits, life insurance, educational benefits and more. Title 38 of the U.S. Code addressing veterans benefits dictates that the benefits are off limits to creditor claims. However, Title 38 has special provisions regarding the support of family dependents. Accordingly, receipt of veterans benefits can be counted as income for support purposes.

Veterans benefits cannot be divided as an asset in a divorce case. This is due to the Uniformed Services Former Spouses’ Protection Act (USFSPA). The Pennsylvania Divorce Code confirms this rule. Under 23 Pa. Section 3501(a), discussing the definitions for marital benefits, veterans benefits exempt from attachment, levy or seizure are defined as non-marital. The definition goes on to draw a distinction between any benefits received in lieu of military retired pay. A similar distinction arises in support cases as far as whether the benefits can be garnished for payment of an award. Garnishment of veterans benefits is only permissible where the service member has waived military retired pay to receive the veteran benefit.

Click here to read about military divorce.

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Updating your Will after Divorce

After your divorce it is very important to update your estate planning documents, most importantly your will. If you leave your old will in place your financial assets, property and even the care of your children may wind-up in the hands of those who you no longer want – your former family members or ex-spouse.

Select a new executor of your will: the executor of your estate is the person who will be charged with distributing your wealth and property. While they are to follow your wishes, if your executor is still your former spouse he/she may not do as you wish or add undo stress when dealing with your family members. When you select an executor make sure they understand your wishes and

Clearly outline who gets what items: Part of the reason you want to clearly spell out the distribution of your items is to avoid fighting by your loved ones after the fact. This can include a family heirloom or an important piece of your jewelry. Rather than have your children fighting over items they were “promised” it is so much easier if you

Name a guardian for your minor children:

In most cases, upon your death your former spouse would be given full custody of your children. If that would not be in the best interest of your children then you will need to spell out why and we suggest you do that under the advisement of an attorney. Furthermore, if your former spouse is no longer in your children’s life due to domestic violence, alcoholism or drug abuse, it is critical that your will contain the right wording and plan for your children. Protecting

Estate planning may seem tedious but is there to protect your wishes should you pass on. Do not rely on state law to handle your estate. Take a proactive approach and ensure that financial assets and care of your children are handled by a responsible individuals who will ensure your children, financial assets and valuables are handled properly.

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Post-Nuptial Agreements

Parties are often encouraged to try to reach an agreement to resolve whatever issues have arisen in any legal matter. In family law, agreements are especially encouraged due to the personal nature of the issues at hand along with the belief that it is better for the parties to draft their own agreement rather than allow a stranger to dictate their family dynamics going forward. A pre-nuptial agreement is a private contract between the parties entered into prior to their marriage that outlines how assets and debts will be handled if the parties subsequently divorce. A basic and straight-forward pre-nuptial agreement would provide that each party retains anything they acquire in their own name and that anything marital or acquired jointly will be divided based on the divorce laws. A pre-nuptial agreement may also provide for an increasing amount of support to a spouse based on the number of years married or number of children produced. Alternatively, one spouse may be required to pay support as a punishment if they commit adultery during the marriage.

An agreement can still be entered even after the marriage date. It addresses the same issues as a pre-nuptial agreement as far as how assets and debts would be divided in the event of a divorce and if any support award would be contemplated. This type of agreement is a post-nuptial agreement. A property settlement agreement or marital settlement agreement is the term for an agreement entered in the context of a divorce. For any of the above agreements to be valid certain conditions should be met. One, there must be a full and fair disclosure of the financial resources/existing assets by both parties. If there is not such a disclosure, there must be a provision in the agreement providing that the parties voluntarily and expressly waived the right to disclosure. Two, it must be clear that both parties voluntarily entered the agreement. Finally, steps should be taken to make sure the agreement is not invalidated on the basis of fraud, duress and/or misrepresentation.

Click here to read more.

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How To Tell Your Children About Your Divorce

Making the decision to your divorce can be difficult. If you have children, the thought of telling them about the split may be overwhelming. While it can be a very difficult conversation to have with your children, a bit of planning and commitment to compassion will make it easier on everyone.

Have a plan to tell them. You and your spouse are ending your marriage and so will begin your relationship as co-parents. While you may be battling each other on several fronts make the commitment to show your children peace. Bring the children together as a family, and explain the situation and plan. Make sure they are comfortable and in a safe place and do not have plans for that day. They may have a variety of emotions to deal with and will not want to cancel plans or be forced out of the house.

Accept the emotions and questions as they are presented to you and do not tell your children how they should react. They may cry, yell at you, sit stunned or actually say “this is better since you fight all the time.” Your kids will have many questions and may even seem a bit self-centered. Remember, children want to feel secure about where they are going to be living and when they are going to see you. More than likely they have friends who have divorced parents and see the switching of homes and sharing of holidays. Your kids are going to want to know what the plan is for them.

Reassure your children that it was not their fault and that you still love them. Often times children feel that if they behaved better, did not fight with their siblings, or earned better grades their parents would be happier and staying together. It is critical that they hear from you it is not their fault and that adult reasons are the cause for your split.

During the months while you are getting divorced you have a beautiful opportunity to show your children peace. Yes, there may be many moving parts including moving to two new homes. If you give them a stable environment and always come from a place of love while in their presence they will adjust a little easier to all the changes.

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Divorce vs. Mediation

Parties often ask what is the best way to proceed when initially contemplating separation and/or divorce. Generally speaking, parties are encouraged to try to reach an agreement to resolve whatever issues have arisen in any legal matter. In family law, agreements are especially encouraged due to the personal nature of the issues at hand along with the belief that it is better for the parties to draft their own agreement rather than allow a stranger to dictate their family dynamics going forward. Additionally, litigation or time spent in court is often the most expensive aspect of a divorce matter.

Both mediators and divorce attorneys can help you negotiate or draft a settlement agreement. The key difference is a mediator is an impartial third party where as an attorney is representing one party’s interest. This is not to say a divorce cannot be resolved with only one attorney; simply that the attorney cannot give advice to both parties since it would be a conflict of interest. Instead, the attorney should make it clear to the unrepresented party their role in the process and the limitations on communication between the attorney and the unrepresented party. Further, it is possible for both parties to have independent counsel and still reach a settlement agreement. If mediation is successful, an attorney may still be needed to file and process the divorce matter.

Click here to read more about options for mediation.

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When You Do Not Want a Divorce (and Your Spouse Does)

As a Bucks County Divorce attorney I have worked with many clients who are facing a divorce they do not want. They may still be in love and want to work on the marriage. At the very least they want to hold the family together for the sake of the children. However, when the other spouse is adamant, they do come to realize there is little they can do. Many ignore the divorce papers they were serviced. This can be a dangerous mistake to make. It is critical to take a few necessary steps to protect yourself personally, legally, and financially.

First and foremost, if your spouse has started the legal process it is imperative that you take action. There are important timelines to follow including paperwork that must be filed with the court and the gathering of documents in a timely manner. Stalling the process could cause significant problems for you. We should meet to review what has been done, the information you have, and the important pieces you need to put in place.

Next, start collecting documents. No matter where you are in the process or how serious your spouse may be about moving forward, it is time to get educated in the finances of your household. Make a list of all financial accounts you have including passwords to accounts. You will need your original marriage certificate, any financial documents from the last three months, the deed to your home, and insurance information.

And of course, as this is going on you need to take care of yourself. Putting a support system in place will be critical as you deal with the end of your marriage, helping your children into their new lives, and moving forward. This can include confiding in close friends and family (hopefully one who has been through a divorce), and possibly spending time with a therapist to ensure you remain emotionally strong. If your spouse is willing you could see a couples counselor or the head of your religious organization.

When one spouse starts discussing divorce it can be a shock to your system. Take the legal process seriously even if you want to work to stay together. Here at our office in Lanhorne, PA I have worked with clients who have eventually reconciled and recommit to build a stronger marriage. We have also helped those who struggle with the divorce to find a happier life waiting for them in the future.

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Keeping the House in a Divorce

If you want to keep the house in a divorce, you may wonder what they will entail. If the mortgage is in joint names or in your spouse’s name, you are definitely going to need to refinance the mortgage into your own name at the time you get divorced, unless your spouse is nice and agrees to stay on the mortgage longer. If there is equity in the home, and not enough other assets to compensate your spouse in other ways, there is a good chance you are also going to need to come up with additional money as part of the refinance in order to buy your spouse out. The equity will be the value of the home at the time of the distribution less all the debt on the home (mortgage, home equity lien, etc.). The amount you will have to pay your spouse will depend on the percentage split of the assets as well where you live. In some counties they will deduct the cost of sale even though you are not selling the home. In others, they do not. If you need to time to be able to refinance, in some cases, it is recommended that you wait the two year period that you can delay a divorce by not consenting. During that time, as long as the mortgage is being paid you can remain the house while you work to build your credit or income so that you can refinance. If you are interested in keeping the house, you will want to check your credit as soon as you separate and talk to a mortgage broker or lender to see what things you will need to do in order to qualify for a loan and then set a plan to meet those steps. You also want to make sure you create a budget to make sure that you really can afford the home. You will need to project your income, the support you receive and the costs of the home, not just the mortgage but all the maintenance and make a decision based on all those factors.

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