One of the most commonly asked questions we get as Maryland Divorce Attorneys concerns the family home. Who gets the house in a Maryland divorce?
What happens to the equity we have in the home? Do the needs of children impact the use and possession of the home? It’s not surprising since the home is the single largest asset for most families. Of course, strong emotional ties to a house or a community also factor into the personal considerations in a divorce.
Who Gets The House in a Divorce?
This question is at the forefront for most divorce clients. If the couple is able to resolve their disputes out of court, they may be creative in how they ultimately address the home. When settled in litigation, however, the Court is limited in how it may resolve the matter.
The Court has three options:
But, what happens if the Court orders the home sold, but the party living in the home refuses to cooperate with the sale and/or refuses to leave? This is a fairly common problem. Many times the party remaining in the home wanted the Court to grant him/her transfer or use and possession of the home, so he/she may be angry or upset by the Court’s ruling.
In this circumstance, the other party may request that the Court appoint a trustee to sell the home and take all steps necessary to effectuate the sale. A trustee is an attorney who is typically compensated at the time of closing at a rate of 4% of the sales price and is reimbursed for all costs associated with the sale (e.g., appraisal fee). The 4% trustee fee is in addition to all other costs of sale, including brokers’ commissions. While that may sound like a hefty price tag, a trustee’s job may be extremely difficult and time consuming. For example, the trustee may have to evict the party living in the home if he/she refuses to leave, which may require involvement of the sheriff’s department. In the end, the party interested in moving forward with the sale, in accordance with the Court’s Judgment of Absolute Divorce, may have no choice but to involve a trustee and incur the additional expense.
Divorce and Selling The Home
It’s important for divorce litigants to understand that, for the Court, the house is nothing more than an asset. While the Court will take into account non-financial considerations when there are children involved, the same considerations do not apply for the husband and wife. The legal process views the home and home equity in a divorce as an exercise in the division of property. If the home is important than it is best dealt with in a settlement rather than in litigation. However, as we often advise our clients, it is best to set aside the emotional considerations with the home and, instead, focus on the best financial outcome.