Introduction to Divorce and Equity Distribution

When dealing with the complexities of getting divorced, especially with children, it is understandable that the long-term ramifications of property ownership may not be adequately dealt with. Add to this that lawyers tend to specialize, and some family lawyers may not be well-versed in the intricacies of real estate law, and the fact that no one can accurately predict the future, and not every situation can be covered in your marital settlement agreement.

Understanding the Scenario

Q: When I got divorced a decade ago, I was allowed to continue living in the house until our son grew up, but I had to cover all the expenses for the house, including the mortgage. Now that he has gone off to college, I want to sell the house, take my share of the equity, and move to a smaller apartment. My former spouse wants to split the equity 50/50, but I believe I should receive credit for maintaining the property and paying down the mortgage over the years. Who is correct? — Alana
A: Since the eventual sale of the jointly owned property was not addressed during the divorce proceedings — either intentionally or perhaps due to an oversight — you will have to proceed as any other joint property owners would.

The Process of Partition

This involves filing a legal action known as a “Partition” lawsuit. In such a case, the judge will examine various factors surrounding the property’s purchase and ownership, as well as the marital dissolution suit. This includes evaluating how the down payment was made, who has fulfilled the mortgage payments, as well as any taxes and associated expenses. Additionally, how the property has been utilized, in your case by you and your son, will also be taken into account. Based on these considerations, the judge will determine an equitable division of the proceeds from the sale.

Considering Alternative Dispute Resolution

While such lawsuits are effective in resolving property disputes, they can be costly and may take months, or even longer, to resolve in court. Therefore, as is often the case with legal matters, it is advisable to seek a resolution outside of the courtroom whenever feasible to minimize time and expenses. You should consider alternative dispute resolution methods, such as mediation, to help you both resolve the dispute without needing to go to court.

Expert Advice

Board-certified real estate lawyer Gary Singer writes about industry legal matters and the housing market. To ask him a question, email him at gary@garysingerlaw.com, or go to SunSentinel.com/askpro. 

Q: When I got divorced a decade ago, I was allowed to continue living in the house until our son grew up, but I had to cover all the expenses for the house, including the mortgage. Now that he has gone off to college, I want to sell the house, take my share of the equity, and move to a smaller apartment. My former spouse wants to split the equity 50/50, but I believe I should receive credit for maintaining the property and paying down the mortgage over the years. Who is correct? — Alana

A: When dealing with the complexities of getting divorced, especially with children, it is understandable that the long-term ramifications of property ownership may not be adequately dealt with.

Add to this that lawyers tend to specialize, and some family lawyers may not be well-versed in the intricacies of real estate law, and the fact that no one can accurately predict the future, and not every situation can be covered in your marital settlement agreement.

Since the eventual sale of the jointly owned property was not addressed during the divorce proceedings — either intentionally or perhaps due to an oversight — you will have to proceed as any other joint property owners would.

This involves filing a legal action known as a “Partition” lawsuit. In such a case, the judge will examine various factors surrounding the property’s purchase and ownership, as well as the marital dissolution suit.

This includes evaluating how the down payment was made, who has fulfilled the mortgage payments, as well as any taxes and associated expenses. Additionally, how the property has been utilized, in your case by you and your son, will also be taken into account.

Based on these considerations, the judge will determine an equitable division of the proceeds from the sale.

While such lawsuits are effective in resolving property disputes, they can be costly and may take months, or even longer, to resolve in court.

Therefore, as is often the case with legal matters, it is advisable to seek a resolution outside of the courtroom whenever feasible to minimize time and expenses.

You should consider alternative dispute resolution methods, such as mediation, to help you both resolve the dispute without needing to go to court.

Board-certified real estate lawyer Gary Singer writes about industry legal matters and the housing market. To ask him a question, email him at gary@garysingerlaw.com, or go to SunSentinel.com/askpro. 

Conclusion

In conclusion, the distribution of equity in a jointly owned property after divorce, especially when one party has been solely responsible for its maintenance and mortgage payments, can be complex. It is crucial to understand the legal processes involved, such as filing a Partition lawsuit, and to consider alternative dispute resolution methods to achieve a fair and equitable division of the property’s proceeds.

FAQs

• Q: What is a Partition lawsuit?
  A: A Partition lawsuit is a legal action filed to resolve disputes over jointly owned properties, allowing a court to determine an equitable division of the property or its proceeds.
• Q: How does the court determine an equitable division of the property?
  A: The court considers various factors, including how the down payment was made, who fulfilled the mortgage payments and taxes, and how the property was utilized.
• Q: What are alternative dispute resolution methods?
  A: Alternative dispute resolution methods include mediation and arbitration, which are processes used to resolve disputes without going to court, aiming to save time and expenses.
• Q: Why is it important to seek legal advice from a specialist?
  A: Seeking legal advice from a specialist, such as a board-certified real estate lawyer, is important because they have the expertise to navigate complex legal matters related to property and divorce.