Divorce Mediation: Is It Practical to Keep The Family Home After Divorce?

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By Rob Stewart, Contributor - October 08, 2013

Fotolia_43510246_XS.jpgQuestion:

My husband and I have not been able to come to an agreement regarding two parts of our divorce. The main concern for me is the marital home. We have three children; it is the only home they have ever known. I want to keep the home to keep them from having to move out of the neighborhood they grew up in. And I can afford to make the mortgage payments and maintain the home without financial help from him.

My ex wants to sell the home and split the interest we receive. He is concerned about the money; I’m concerned about the children and them not having to make more adjustments because of our divorce. The judge has ordered us into mediation to get this settled and I’m worried. I’m tired of having to defend my position and now I have to do it all again with a perfect stranger. Any tips for me as far as preparing a sensible argument for what I want for myself and the children?

Answer:

Your husband is probably most concerned about three practical issues:

  • His legal and financial obligations in connection with the mortgage secured by the home;
  • His not being able to qualify for a mortgage of his own while he is still responsible for the mortgage on the family home; and
  • Receiving his share of the net equity in the house. There are only two practical ways to resolve your husband’s concerns: sell the house, or have you refinance the existing mortgage.

Although you are able to make the mortgage payments without help from your husband, the real issue is whether or not you can qualify to refinance for an amount sufficient to both pay off the existing mortgage--thus eliminating your husband’s legal and financial obligations--as well as to pay your husband his share of the net equity. If you can resolve these concerns, then your husband should have no financial or legal objection to your keeping the home.

If you cannot qualify to refinance for an additional amount sufficient to pay your husband his share of the net equity, there are several possible options:

  • You could give your husband other assets, such as a share of your retirement accounts, in lieu of cash for his share of the net equity;
  • You could assume some of your husband’s share of debts equal to the amount of his net equity, or
  • Your husband could agree to postpone receipt of his share of the net equity until some future date such as the youngest child’s graduation from high school, or the eventual sale of the home. If none of these options is available or acceptable, the court will likely order you to sell the house now.

In addition to the two issues discussed above, your husband may be concerned that your staying in the house gives you an “unfair advantage” as a parent because he has moved out, yet you remain in the house with the children. This is an entirely separate issue, and cannot be resolved simply by your refinancing the existing mortgage.

Understandably, you do not want to disrupt your children’s lives by making them move out of the family home. However, this issue is of far less concern than the quality of the relationship that you and your husband maintain with each other following the divorce. Remaining in the family home will not protect the children if you and their father have a contentious relationship, and the children feel “caught in the middle” between the two of you. If refinancing is not an option, perhaps you could move to a more affordable home in the same school district, but regardless of what you do, continue to give your children your love and reassurance. A house is just a building--it takes love and security to make it a home.

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