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Who gets the house after divorce?

December 01, 2014  |   Posted by :   |   Blog

property law solicitor Maidenhead

Deciding what to do about the family home is often the hardest part of a divorce or separation. Do you sell up and split the proceeds? If you keep it, who’s going to move out? How will you work out mortgage payments? A family home is full of memories, some of which may become bittersweet after divorce – the place you call home becomes both a familiar safe haven and the site of bad memories.

For most separating couples, the family home is their biggest financial investment, and will need to be used as an asset during the divorce process. This may mean making a decision about who stays in the house with the children, or it may be more practical to sell the property outright and dividing the proceeds. Dealing with such an emotive subject can be tricky, especially in the early days of negotiations, and talking about your plans for the family home is often a flashpoint for disagreements and conflict. Children may feel scared or upset about the prospect of moving home and it’s important to proceed with caution until you’ve spoken to your solicitor about your options.

Another vital step is to ensure that any mortgage and insurance payments are maintained, even if one partner has moved out. Try to set bitterness and anger aside and establish some basic plans about how you’re going to keep up payments – animosity and stress can complicate and extend the separation process, causing you both extra costs in the long run, and no one should have to feel uncertain about where they’re going to live. Sit down and discuss your situation in a practical way, get independent legal advice from your solicitor, and don’t act rashly in response to threats or promises.

When you meet with your solicitor, give a full and frank disclosure of your finances so that they can help you to decide on a fair settlement with your ex. If you use mediation, arbitration or collaborative family law, you will be able to complete these negotiations out of court. These out of court methods allow you more control over your outcome but rely on discussion and honesty between you and your ex, so you must be prepared to take a non-combative approach to meetings. Your solicitor will be able to let you know if an offer is fair, or whether there’s a better option for you, and help you to work through your issues in a positive way for everyone involved.

If you take your case to the family court then ultimately it will be up to the court as to how your property issues are resolved. A court resolution will take into account your circumstances, any children or dependents that need to be provided for, your assets, financial situation, the duration of your marriage, and the contributions made by each party towards your family and home. The court will always take into account the needs of children and primary caregiver first, and this may result in awarding one partner the right to stay in their home. Financial interest in an unsold property can be resolved either by one party buying the other out, paying a lump sum towards its worth, or retaining joint ownership in the home until a later date – for example, when the children have moved out, or if the residing partner remarries. The court might also order the sale of the property and divide the proceeds between you, though this is more common in cases where there are no children involved.

If you’re planning on separation and need to sort out the logistics of what to do with your family home, these three initial steps can help you to make a practical start:

1) Keep personal documents relating to the property in a safe place, and take them with you if you move out. Try to get all the information about your investment together before you contact a solicitor so that you’re in the best position to discuss your situation;

2) Speak with your partner as calmly and openly as you can about what to do with the family home after divorce. Try to put differences aside and consider the best outcome for both of you. The more you can negotiate before you enter into the separation process, the quicker, cheaper and easier it will be;

3) Consult a family law solicitor and work out the most appropriate method of separation for you as a couple, whether it’s mediation, arbitration, collaborative family law or a court divorce. Use the guidance of your solicitor to help you make practical choices about your family home and other assets – and never make a decision without legal advice!

For more advice on divorce, separation and property, contact the family law team at Frances Lindsay & Co. We offer fixed-fee services that are tailored to your situation to help you work through difficult times with the support of an experienced and friendly family law solicitor.

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The Law Society Family Law Accredited

The Law Society Family Law Accredited

Resolution: first for family law

Resolution: first for family law

Resolution collaborative family lawyer

Resolution collaborative family lawyer

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Resolution mediator

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Law Society Lexcel practice management standard