Selling Your Home In A Divorce
By Kevin Baldwin
Divorce is not easy. Even amicable separations involve disappointment, lack of communication, and a failure of expectations.
Realistically, the objective of divorce is to allow people to part ways and get on with life separately.
Unfortunately, during the process, you and your emotions are subject to a myriad of changes in family life, the home, and finances.
Selling your home is not an easy task either. It also involves disappointment and emotional stress.
Combine the two events, and you have an undertaking that requires much patience, diligence, and fortitude.
Thankfully, divorcing couples can move forward in this challenging phase of their lives with the help of sound legal advice.
Decisions regarding the family home can be difficult, but it is important to know the legalities that come to the forefront in a divorce action.
Since divorce laws can vary from province to province, professional legal counsel is your best source of information on what needs to be done to protect both parties' interests in the property.
Selling a house without a divorce looming in the background can be a major task in itself.
Many questions arise when trying to sell your home during a divorce. What needs to be done to have a quick and profitable sale?
Who will choose the Realtor?
When is the best time to list a home?
Where do the financial responsibilities lie during the sale of the home?
Knowing what to expect in the selling process can help alleviate any fears or misconceptions you may have.
Every divorce has a unique set of circumstances.
This book is not intended to be a legal guide or advice, but a source of information regarding your marital property.
Knowing some of the legal terminology and options may give you a more objective understanding of your situation.
Rarely does a divorce end up in the courts, because that is costly and time-consuming.
But, if there is no reasonable way to settle the divorce using mediation and/or legal counsel, any disputes and disagreements between spouses will have to be decided by a court of law.
Some provinces are called "community property" provinces, and others are "equitable distribution" provinces.
Most provinces follow the laws of equitable distribution, which means property acquired will be divided between the spouses in a fair and equitable way.
The court determines who receives what based on a variety of factors, such as the relative earning contributions of the spouses.
In community property provinces, on the other hand, all income and assets earned or acquired during the marriage are considered to be owned equally.
This also applies to all debts, no matter who created the liability. In a divorce action, these will be divided equally.
In addition, there are mutual court orders that automatically protect marital properties. An automatic temporary restraining order prohibits spouses from selling, transferring, or borrowing against property when a divorce is filed.
Again, any orders need to be discussed with your family attorney as this protection varies from province to province.
It is also vital for you to understand the relationship and difference between a mortgage deed and a property title.
Mortgages are conditional, legal agreements for the purpose of buying a property/home.
The lender's security interest is on record when the title is registered.
The mortgagee (lender) may obtain a foreclosure order to take possession if payments of the debt are not made.
A property title refers to ownership of that property and the rights to use it.
A person on the title can transfer ownership to another parry but cannot transfer more than he owns.
Some divorcing couples utilize a quitclaim deed, which transfers ownership from one spouse to another, but it does not transfer financial responsibility.
One spouse may transfer title of the home to the other thinking they are no longer financially responsible for paying the mortgage, but this is not so.
The loan payments are the responsibility of the parties on the mortgage.
In order to change the names on the mortgage, one spouse will have to obtain financing to buy out the other.
All discussions regarding mortgages, quitclaim deeds, and title of property should be conducted with your legal adviser.
The purpose of this book is to provide information regarding the sale of your home in the framework of a divorce; it is not legal counsel.
Watch for chapter 2 coming soon.