Are you facing a divorce and don't know who is entitled to the property? Are you wondering what will happen to the property if you move in together or separate? These questions can cause a lot of stress, especially when emotions are running high. At Delissen Martens we understand how complex property issues can be.
You are getting divorced and still own a house with your partner. The house is mortgaged and you both signed for it. Because of the divorce, it is likely that you will not be able to continue living in the house. What do you do now? There are three options: divide the house, sell it or leave it undivided. You can agree with your partner who will continue to live in the house for the time being.
If the spouses do not have a marriage contract before a notary, they are legally married with a limited community of property. This basically means that everything the spouses own in terms of property, rights and debts belongs to both of them and each is entitled to half, with the exception of what they owned before the marriage, gifts and inheritances.
At the time of the dissolution of the joint property, it is frozen, so to speak. However, the value of the property to be divided is only determined at the time of the division. Often, a value is assigned to the various assets by mutual agreement in order to make the division as practical as possible. In the case of a house, an estate agent can advise on the value of the house through a valuation. In mediation, the divorcing spouses discuss the value of the house with each other, subject to expert advice. The spouse who wants to stay in the house makes an offer for a mortgage, which is included in the method of division and release from joint and several liability.
If you and your partner cannot agree on how to divide the house, the court will have to make a decision. This can be done as ancillary relief to a divorce petition, or in a separate partition proceeding. The judge can determine who has the greatest interest in the division of the home. The court can also determine the value of the home, again requiring a valuation. In addition, the divorcing partners will have to prove that they can finance the house by submitting a mortgage offer. In some cases, it is better to sell. If the other partner does not want to leave the house, a substitute agreement can be requested so that the sale process can begin. The court will always consider the facts and circumstances of the case.
Because of the mortgage deduction possibilities, it is important to get good tax advice if the house is part of the joint property. Even if you are married under a pre-nuptial agreement, it is often the case that you will own the home together and you will need to make arrangements as to whether or not you will continue to be a tax partner in the year of divorce in order to optimise your tax options.
Are you looking for a family law solicitor? You are welcome to visit our office in The Hague. Our experienced lawyers will be happy to assist you with all your family law needs.
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