Archive for the ‘Divorce and Your House’ Category

Handling Money at the End of Your Marriage

Sunday, November 22nd, 2009

There are five financial issues that can take down a marriage – reduced circumstances, financial mistakes, caring for parents, caring for kids, and uncertainty – according to Ron Leiber, “Your Money” columnist of the New York Times.  These are truly issues that affect every marriage at some point, and I thought that they warranted a little more coverage.

Reduced Circumstances: Although some people may be disappointed over the reduction in lifestyle thanks to a layoff or change of interest rate, consider how dividing up a household doesn’t reduce costs.  Getting divorced will now mean that, however you and your spouse are dividing assets and responsibilities, you’re supporting two households on the same income that used to support one.  Even if you have a peaceful and inexpensive divorce, it definitely does not improve reduced resources.

It might be that problem is that you were unhappy and unfulfilled in the marriage, but you stayed because of the money.  Sometimes it’s easier to Spackle over problems with money than to address them.  You might be thinking “I want to leave this marriage” and then balked at the tumult of taking the kids out of private school, foregoing that trip to Hawaii each year, and downsizing your car.  If reduced circumstances have already stripped those things away, maybe you’ve just cleared the path to divorce.

In that case, more financial security created the problem by being a motivator for staying in an unhappy marriage, and losing those ties helped reveal the real issues.

Your Mistakes:  The mistake is really that you didn’t have the difficult conversations early. I can’t tell you the number of people who come in who have railed through their home equity line of credit because they didn’t have the heart to tell their spouse to stop shopping at Fred Segal.  But the discussion doesn’t revolve around the details.  It needs to be a dialogue that you are both engaged in.  “I want to share with you the home equity line of credit statement (or charge cards, etc).  I am concerned that we are over spending.  What do you think we should do?”  Have the conversation as a series of “I” statements (as opposed to “you should”) and a question to open up the discussion.

The other big fight we see is “We agreed you would go back to work after the kids went to school and then you never did.”

To turn the conversation around, the approach is similar to the discussion above:  “I am concerned that you’re not looking for a job when we agreed you’d go back to work when the kids were in school full time. What’s holding you back?”  If it’s that the spouse has changed his/her mind, then involve him or her in the budgeting process.  The loss of a second income will have an impact on the family.  How can each partner take responsibility for that?

Too many people just let it ride, and four years later end up in our office feeling like they’ve been let down by the spouse who didn’t go back to work or curb spending. They realized too late that the real problem was that both people weren’t involved in making an active decision.

Your Children:  While they may have started out as a surprise, their turning 18 and applying to college is not.  Have the conversations about college early and often.  And not just with your spouse, with the semi-adult children, too.  A drastic change in circumstances is something an 18 year old is able to understand.  But “we blew our wad on your siblings and didn’t plan for you” is sure to land him on a therapist’s couch.

Read more tips on dealing with finances in your relationship here: http://estestherapy.com/relationshiptips/2008/04/30/financial-stressors-keeping-your-relationship-strong-in-a-recession/, and to find out more about sharing college costs with your ex, go here: http://www.kiplinger.com/columns/drt/archive/2004/dt040826.html.

  • Share/Bookmark

Creative Solutions with Your Mortgage

Friday, October 2nd, 2009

Let’s say your home is worth $100,000.00 and there is an $80,000.00 mortgage on the home, leaving $20,000.00 in equity. You and your spouse have agreed to divide your assets 50/50 and you are going to keep the house, but you are unable to pay your spouse for his or her $10,000.00 interest in the home. You agree to execute a mortgage in favor of your spouse that you will pay in a lump sum in 10 years. This mortgage will be documented by your attorney, who will draft the proper papers, and record them on the land records.

 

If, however, the housing market falls and your house is suddenly worth $70,000.00 when it comes time to pay this $10,000.00 mortgage, you must pay your spouse the $10,000 from the divorce agreement even though the value of the house is less than it was at the time of your divorce. This is also true even though the amount that you owe on the mortgages ($80,000 on the first mortgage and $10,000 on your spouse’s mortgage) may even be more than what you can expect to get for the house in the event you sell it. This is a risk that you take by not paying your spouse or dividing the asset immediately. Generally, real estate markets go up, but that isn’t always the case.

 

A creative way of dividing the equity in the house is for spouses to record a notice of equitable interest against the land records, which gives the spouse relinquishing his or her ownership interest in the house a right to a certain percentage of the equity in the house when it is sold. So, if you agreed that the house would be sold in 10 years and that each spouse would receive 50% of the equity, if the house was worth $70,000.00 in 10 years and the mortgage owed was still $70,000.00 in the example above, then your spouse would not receive any money, and you would not have to pay your spouse more than your house is worth at the time that the equitable interest becomes due.

 

Yet, if in the future the house is worth $300,000.00, and the mortgage has been reduced to $70,000.00, then your spouse would be entitled to share in one half of  the $230,000.00 profit, even though he or she hasn’t been cutting the lawn or making the mortgage payments.

 

Sometimes, in these circumstances, the spouse remaining in the house accrues a certain amount of credit for the fact that he or she has performed the maintenance and paid down the balance on the principal owed on the mortgage over time. You may also wish to make provisions with respect to repairs and maintenance on the house, having you and your spouse share expenses for big ticket items such as the furnace, water heater and roof. If both spouses are to share in the appreciation of the house (or depreciation), they could both share in the maintenance costs.

 

These kinds of situations can get sticky emotionally and are not as straightforward as simply refinancing or selling the house at the time of the divorce, but they may represent a creative solution that will help you settle your case. For more information on the financial aspects of divorce, see http://www.peace-talks.com/finformation.php. Also visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.

 

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

  • Share/Bookmark

Executing the Mortgage in Favor of Your Spouse

Tuesday, September 29th, 2009

If you are not in a position to refinance the house or pay your spouse immediately, and there are not enough assets to offset your spouse’s interest in the home, you might consider giving your spouse a mortgage on the home, or securing your spouse’s interest in the home using an equitable interest notice.

If you have determined what the spouse will be paid for his or her interest in the home, and the terms of the agreement, your lawyer can prepare a mortgage document to secure the spouse’s interest in the home in the land records. That way, even if you die, your spouse’s interest is protected.

 

A negotiating point will be whether or not the mortgage secured against the home will bear interest. Sometimes, it makes financial sense to pay your spouse interest on the mortgage which can accumulate if he or she has to wait a long period of time for the money rather than having to immediately sell or refinance the house. Understand, however, that even if the house value falls, you will still owe the amount of money set forth in the mortgage.

 

For example, let’s say your home is worth $100,000.00 and there is an $80,000.00 mortgage on the home, leaving $20,000.00 in equity. You and your spouse have agreed to divide your assets 50/50 and you are going to keep the house, but you are unable to pay your spouse for his or her $10,000.00 interest in the home. You agree to execute a mortgage in favor of your spouse that you will pay in a lump sum in 10 years. This mortgage will be documented by your attorney, who will draft the proper papers, and record them on the land records.

 

The next question is whether this mortgage will bear interest for your spouse. Your spouse is waiting ten years to get $10,000.00. If she or he forced you to sell the house, he or she would get money immediately. Having to wait for the money may mean that your spouse is not able to buy another house or condominium immediately and has to make certain sacrifices. In such situations, having the mortgage pay interest is a desirable option.

 

If the market goes up, and in 10 years the $100,000 house is now worth $200,000, you are still obligated only to pay the $10,000 (plus interest, if negotiated) agreed upon in the original divorce agreement. Your spouse then gets $10,000 (plus interest, if negotiated) and you keep the $190,000 value (less any outstanding mortgages) of the house. If the value of the house skyrockets to $300,000.00, you would get to keep all of the extra equity by virtue of the house’s appreciation, and you would only owe your spouse $10,000.00. For more information on the financial aspects of divorce, see http://www.peace-talks.com/finformation.php. Also visit the Peace Talks resource center at

http://www.peace-talks.com/resources.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

  • Share/Bookmark

Timing of the Sale of Your House

Thursday, September 24th, 2009

Evaluate your circumstances to determine when and how the equity in the house is best split, and whether that must be accomplished by a sale, or a refinance or buy-out between spouses. Sometimes it can be done immediately, and in other situations a delay is preferable.

 

If one spouse wishes to keep the house, and there is a way to divide the equity and offset it against other assets, or refinance the house so that the spouse giving up the house is paid his or her share of the house as soon as possible, then the spouse retaining the house would be under no obligation to sell the house subsequently. This is the cleanest way to handle this situation.

 

However, you may not be in the economic position to split your home equity in this manner, or may be ineligible or unable to afford a refinance. Therefore the timing of how a spouse is paid his or her share of the house equity becomes a central issue.

 

If the division of equity will not happen immediately, there may be an obvious dividing point, such as when the children graduate from high school or college, the remarriage of the spouse retaining the house, whenever that spouse begins to live with someone under circumstances tantamount to remarriage, or any other life event that you determine in advance. Generally, when the first of these events occurs, the spouse who gave up ownership of the house or right to occupy the house needs to be paid his or her equity, either through a refinance or a sale. Sometimes, the spouse to whom payment is owed is given an opportunity to buy the house if the spouse who retained the house wishes to sell it at that time. If you want help in considering all of your options, consider meeting with a divorce financial planner, see https://www.institutedfa.com/ReferralSearchPage.aspx. Also, be sure to see the Peace Talks resource center at http://www.peace-talks.com/resources.php.

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

  • Share/Bookmark

Arrangements for the Sale of Your Home

Tuesday, September 22nd, 2009

If you intend to sell your house, contact a neutral real estate agent who can give you trustworthy advice about preparing the property for a quick sale. Ask the realtor to tell you the minimum number of repairs and maintenance items needed to make the house easier to sell. Keep track of your expenses for the fix up, and keep track of who does all of the work. Don’t do anything fancy or major to the house unless it is absolutely necessary, or unless you and your spouse unequivocally agree that the improvement will be financially worthwhile. For example, painting the hallway is inexpensive and easy to do on your own, and if it will help your house sell faster, do it. If you and your spouse can cooperate in this effort, then do it together. If you can’t cooperate in doing this together, see if you can arrange to divide the tasks so that each of you can work on the house separately.

 

Even if your spouse won’t participate, such tasks still need to be accomplished. Perhaps you and your spouse can agree on hiring a painting company or maintenance service person to do the work for you, and splitting the cost. Even if you have to do all of the work yourself, do it. A speedy sale for a higher price benefits both of you. It is silly to let a home deteriorate, or let a sale slip through your hands by refusing to fix a roof, because your spouse won’t help pay. Keep a list of everything you do, so that if your case needs to be tried you can tell the judge about it later, but try to remain practical and pragmatic for now. Continue to work towards a solution rather than create an impasse, irrespective of your spouse’s behavior. Don’t lose sight of the benefit you will bring to yourself by putting up with some inconvenience in the short term. For some information on how to sell your house quickly, see http://www.ourfamilyplace.com/homeseller/prepare.html. Also see, “How to Sell Your House Quickly in Any Market, http://ezinearticles.com/?How-to-Sell-Your-House-Quickly-in-Any-Market!&id=1750273.

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

  • Share/Bookmark

Negotiations Once the Value of the House is Set

Friday, September 18th, 2009

Negotiating once the value of the house is set is a process that demands creativity and flexibility. Determine your priorities in advance of the negotiating process. In settling your case, you and your spouse can develop a plan that works for both of you. Generally, judges will approve any agreement which is basically fair to both parties. That means that you can be as creative as you wish with respect to the timing and provisions for the sale of the house and division of the equity.

 

Reasons To Sell

  1. cannot afford mortgage payments
  2. too much upkeep
  3. too much money tied up in equity
  4. too many memories
  5. money owed to others (such as family loan for down payment) makes refinance or buy out impossible

Reasons Not To Sell

 

  1. stability for yourself and children
  2. ability to refinance or buy out spouse
  3. sufficient diversity of assets, i.e., in addition to house equity you also have kept some liquid assets for emergencies and/or sufficient retirement funds given your age and employment
  4. ability to maintain house
  5. ability to make mortgage payments
  6. tax considerations (deductibility of mortgage payments and capital gains)

 

If You Decide Not to Sell: Joint Versus Sole Ownership

 

You and your spouse have two choices concerning the ownership of the house. You can continue to own the home jointly, or one of you can own it in one sole name. Although joint ownership may continue after a divorce, in practice this is sometimes inconvenient. It keeps one spouse from mortgaging or selling the property without the other spouse knowing, but it also can create friction between divorced spouses who may have different priorities with respect to the upkeep and maintenance of the home.

 

If one spouse retains ownership, that spouse is entitled to make all decisions concerning the property, free from any interference from the other spouse. While this may not seem like a benefit initially, five, ten or fifteen years later the benefit of having autonomy with respect to the home ownership becomes more tangible.

 

Ownership of the house is different, or can be different, than the responsibility for paying the mortgage. If both you and your spouse have signed the bank papers to be responsible for the mortgage, merely signing the title of the house over to one spouse does not relieve the other spouse of his or her responsibility to continue paying the mortgage. Refinancing the home mortgage in the sole name of the spouse keeping the house is the safest way to protect the spouse who won’t be occupying the home. If refinancing is impossible or impractical, your lawyer can help you build language into the agreement to protect the spouse who has relinquished his or her interest in the house from having to pay the mortgage. For some excellent resources on dividing the marital home in divorce, see http://www.womansdivorce.com/marital-home-and-divorce.html. Also see the Peace Talks resource center at http://www.peace-talks.com/resources.php.

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

  • Share/Bookmark

Determining the Value of the House

Monday, September 14th, 2009

Determining the value of your house may help you make the decision about whether or not to sell. Determining its essential value is easy if the house is on the market for sale, and a willing buyer offers a price that both you and your spouse feel is fair. The ultimate value of your house is what someone is willing to pay you to buy it. At the closing, the mortgage and any liens are paid off, you pay the realtor’s fees, and the leftover money is the net equity. That’s the amount you and your spouse divide.

 

If you are not going to sell your house, or you are uncertain, you can have it professionally appraised. Since the 1980s real estate boom and crash, few people have a realistic idea of what their home is worth. Their sentimental attachments interfere with their ability to accurately assess its value.

 

Real estate agents may offer to appraise your home for free, but beware. These same agents may realize that you are divorcing, and may want the listing on the house in the event that it’s sold. In order to entice you to do that, they may artificially inflate the value of the home, in an effort to woo you into listing the property with them.

 

How to select an appraiser with your spouse

 

If possible, select an appraiser with your spouse. Ask for a referral from a trusted real estate agent, friend who has recently sold or purchased a house, or your lawyer. If you each know an appraiser but cannot agree on which appraiser to use, you may ask your appraisers to make a recommendation. If you can agree on an appraiser, you can split the cost, which poses an obvious advantage. By choosing one appraiser, rather than each hiring your own, you avoid “dueling appraisers” who testify against each other at a trial, a time-consuming and expensive approach.

 

If you cannot agree on one appraiser, and each hire your own, choosing a respected appraiser who assigns a fair value to your home is generally the best strategy. If your case proceeds to trial, you’ll need an appraiser who is respected in the professional community and who has experience testifying in court. An unscrupulous appraiser who assigns a disproportionately high or low appraisal value to your home to please you may not be able to justify that value in court. Judges do not take kindly to parties who try to unduly bias the Court in their favor. Such shading of the truth then undermines your case.

 

Once you have a fair appraisal, you can then work with the value of your home in further dividing your assets. For some terrific resources about selling when getting a divorce, see http://homebuying.about.com/od/sellingahouse/qt/0307DivorceHome.htm. Also see the Peace Talks divorce resource center at http://www.peace-talks.com/resources.php.

 

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

  • Share/Bookmark

Sell or Keep the House?

Thursday, September 10th, 2009

One of your first big decisions in your divorce is whether or not you can afford your house or apartment after the other spouse moves out, and if so, whether you want to continue to live there. The last thing that you and your spouse need is an unmanageable property that neither of you can afford. By the same token, don’t make any rash decisions. You can always give up an apartment or sell a house later, but you probably won’t be able to re-rent the same apartment or re-buy the house after you give it up.

 

Even if you can afford the house and want to live there, can you mow the yard and do the necessary repairs without your spouse to help?  Is there too much space?  Are there too many memories?  Are you able to afford it, but it will take so much of your monthly income that you won’t be able to do anything besides pay the mortgage or rent and buy groceries? Is that a lifestyle you can accept? For an excellent article on whether to see your house, see http://parenting.ivillage.com/mom/structure/0,,t7f,00.html.

 

When Edith got divorced, she wanted the house. She and Charles had renovated it themselves over the last 10 years, and she’d personally picked out all of the details, from the paint color to the door knobs. When Charles said he was leaving, she felt the house was her only solace. It was a comfort to her, but only for a time. Within two years she realized she was rushing home from her job every day to mow the yard, wait for the washing machine repairman, and to clean. She barely had enough money left every month to go to the movies, and most of her “savings” were tied up in equity in the house. Two years ago, the house had been a comfort. Now it was a liability!  She sold the house and moved to a condominium, and now has free time and money to enjoy herself.

 

If either you or your spouse can afford to stay in the home, and there is a sentimental reason or attachment to the home, or you want your children to stay there, you will need to begin thinking about who will be staying in the home. Once the decision about who is staying in the home is made, then the question becomes how to divide the equity in the home. For a good practical article, see  http://www.divorce360.com/divorce-articles/debt-and-credit/mortgage/need-to-sell-your-house-in-divorce.aspx?artid=899.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

  • Share/Bookmark

Living Together During or After Divorce

Monday, July 13th, 2009

The Wall Street Journal published an article today about staying together after you get divorced, or staying together while the divorce is going on.

http://online.wsj.com/article/SB124743668592229179.html

Nice idea, in principal.  Right? It’s cheaper, you don’t have to worry about changing the kids’ schedules, you keep your same mailing address……

But what this article, and the similar article which appeared in the New York Times on December 30, 2008, failed to mention was that the time of separation and divorce can be a very difficult time for the participants.  Even for families which are not involved in chronic domestic violence, it is not uncommon for there to be 1 or 2 isolated incidents of violence surrounding the decision to divorce.

Are we sure that’s worth the money?

A client called last week and said, “We got into a fight and [spouse] slapped me. I called the police, and the police arrested [spouse]. Now what do I do?” This same client had called the week before complaining that he/she didn’t see how their mediation could be completed for the average amount of fees which we quote clients.  Now the cost of mediation is a drop in the bucket—-spouse had to be bailed out of jail, there’s a restraining order, and one or both spouses will need an attorney.  I’ll bet that spouse is no longer interested in settling through mediation, so the new divorce lawyers will easily cost 3 times the amount of money that client was worried about just a week prior.  And let’s not forget that all of this went down in front of the parties’ children.

So is it really about money?  At this point, I fail to see the savings.

Likewise, the Los Angeles Times has a similar article in today’s paper:

BODY,.aolmailheader {font-size:10pt; color:black; font-family:Arial;} a.aolmailheader:link {color:blue; text-decoration:underline; font-weight:normal;} a.aolmailheader:visited {color:magenta; text-decoration:underline; font-weight:normal;} a.aolmailheader:active {color:blue; text-decoration:underline; font-weight:normal;} a.aolmailheader:hover {color:blue; text-decoration:underline; font-weight:normal;} http://www.latimes.com/news/opinion/la-oe-rodriguez13-2009jul13,0,2836570.column

As a 20 year divorce professional (litigator turned mediator) I worry that in an effort to save a couple of bucks that people are putting themselves in danger.  And if it’s not physical danger, per se, what about what the children are witnessing? Are these parents who are staying together really perfect role models for how adults should handle conflict?  I sure hope so, but somehow I doubt it.

Let’s not forget that an overwhelming number of non-gang-related homocides are [former or current] romantic partners. Remember the fellow who dressed as Santa and killed half of his wife’s family last Christmas? He was her ex husband.

My observation of “I can’t afford it” is really “I don’t value it so I’m not going to spend money on it”.  Remember when you shared an apartment with 2 other people in college? Or you clipped coupons to make ends meet because your first job paid $5 an hour?

Staying together in the same house while you’re getting divorced may work for some folks, but for those it does not work for, it is a disaster.

  • Share/Bookmark

Bad Behavior has blocked 790 access attempts in the last 7 days.