Are you going through a divorce and not sure who has the right to the house? Are you wondering what will happen to the house in the event of a divorce, such as 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 housing issues can be.
Your own home and divorce
You are getting divorced, but you and your partner own a home together. There is a mortgage on the house that you both signed. Because of the divorce, there is a good chance 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. This decision is often the beginning of a process in which the home is at the center of the divorce.
Your own home and limited community property
If the spouses did not have a prenuptial agreement drawn up by a notary prior to their marriage, they are legally married in a limited community of property. In principle, this means that everything the spouses own in terms of property, rights and debts belongs to both of them and that each is entitled to half, with the exception of what they owned before the marriage, gifts and inheritances. This also applies to the family home in the event of divorce, if it was acquired jointly during the marriage.
Valuation of the house in the event of divorce
At the moment of the dissolution of the conjugal community, the house is frozen. However, the value of the property to be divided is not determined until the time of division. Often, a value is agreed upon for the various assets in order to facilitate the practical division. In the case of a home in a divorce, a real estate agent can provide advice on the market value through an appraisal. In mediation, the divorcing spouses discuss the value of the home, taking into account expert advice. The spouse who wishes to remain in the home obtains a mortgage offer, which is taken into account in the division and in the release from joint and several liability.
Court decision on the division of the home
If you and your partner cannot agree on how to divide the home, the court will have to make a decision. This can be done as an addendum to a divorce petition or in a separate property settlement. The court can determine who has the greatest interest in the division of the home in the event of a divorce. The court may also determine the value of the home; again, an appraisal will be required in all cases. In addition, the divorcing spouses must prove that they can finance the home by submitting a mortgage offer. In some cases, a sale is unavoidable. If the other partner is unwilling to leave the home, substituted consent may be sought to initiate the sale process. The court will consider all relevant facts and circumstances.
Tax aspects
Because of the mortgage deduction, it is important to obtain sound tax advice if the home is part of the marital community to be divided in the event of divorce. Even if you are married under a prenuptial agreement, it is often the case that you will be joint owners of the home and will need to make arrangements as to whether or not the tax partnership will continue in the year of divorce. This can have a significant impact on your tax options.
Need legal advice from our family law attorneys?
Are you looking for a family lawyer with experience in homeownership issues in divorce? You are welcome to visit our office in The Hague. Our experienced lawyers will be happy to assist you.
