Real Estate in Same-Sex Divorce

Divorce can be a difficult and stressful situation for any individual. If the spouses involved in a divorce owned property, there will be real estate issues involved in their divorce, such as who will keep which property or properties.

Is a Same-Sex Divorce the Same as Other Divorces?

Same-sex marriages are legally recognized marriages of two individuals who identify as the same sex as each other. Same-sex marriage is currently legal in every state in the United States in addition to the District of Columbia.

Because same-sex marriage is legal, there are numerous legal rights that are granted to same-sex couples, including:

• Property rights;
• Employee benefits;
• Tax benefits;
• Medical leave;
• Family leave;
• Hospital visitations; and
• Divorce.

Currently, same-sex couples who get married have the same or similar legal rights as heterosexual married couples with regard to property. Typically, property rights include protections for spouses in the event of a divorce, legal separation, or death.

In addition, same-sex married couples can now hold property together as well as enjoy other marriage-related benefits, including marital estate planning resources.

How Is Property Divided in a Same-Sex Divorce?

Property is divided the same way in a same-sex divorce as in a regular divorce. Property division in a divorce is the way in which the spouse’s property and money are distributed between them during the divorce process.

To determine which party will get which assets, the first consideration is who owns that property. In order to make this determination, the initial consideration is whether the spouses reside in a state that divides marital property by equitable distribution or community property laws.

Equitable distribution is the more popular method, used in 41 states. This method requires the court to examine multiple factors and variables when determining which party will get what property.

It is important to note that equitable distribution does not mean dividing the property equally. Instead, the focus of this type of property division is based upon fairness to both parties.

Factors that a court may consider in order to reach a fair result include, but may not be limited to:

• How long the couple’s marriage lasted;
• Whether there was a prenuptial agreement that included information about property division;
• The employment, skills, and financial background of each party;
• Whether there will be any issues related to child custody and child support;
• The age and health of each spouse, including existing medical conditions;
• Whether one of the spouses will require spousal support or alimony;
• What each person’s individual estate offers compared to the marital estate; and
• Whether the spouses have any jointly or independently owned businesses.

The other nine states have community property laws. Under these rules, the property of the spouses is considered owned 50/50 between them.

In both equitable distribution and community property states, property that is owned separately by one spouse will be granted solely to them at the end of the divorce process. Classifying property as separate property is one of the primary issues at the center of most divorce cases, as it cannot be considered community property.

• Any property that is owned in one of the spouse’s names prior to the marriage;
• Gifts and inheritances that are left to one specific spouse;
• Personal injury awards received by one specific spouse;
• Pension proceeds that vested before the marriage;
• Family heirlooms; and
• Property acquired through a trust.

What About the Marital Home and Other Real Estate Assets?

The marital home, or marital residence, is a term that is used in divorce law to refer to the property where a married couple resided together before the breakdown of their marriage. Once one spouse leaves the marital home for a reasonable amount of time, depending on the situation, they may have been deemed to have abandoned or deserted the other spouse.

In these cases, the spouse will be entitled to a credit toward the marital residence, even if it is held jointly. For example, a down payment consisting of separate assets may be backed out of the value of the property and returned to the party who contributed the separate asset, even when the property is deemed marital.

In some cases, the court may order that the home should be sold. If, however, one of the parents receives custody of the child or children, the court can delay the sale, typically until after the child has graduated high school.

A court may also award the home to one of the spouses. This issue will be determined by all of the factors impacting equitable distribution.

The court will consider the value of the home as well as examine any mortgages or other types of housing options. Exclusive occupancy rights grant one of the spouses the right to reside in the home.

The other spouse will be required to find another place to live. These rights may be provided to the parent who has custody of the children if the court delays the same of the home.

These rights may also be provided for the safety of one of the spouses while the divorce is happening. If this is necessary, the court may grant an order of protection that can make the individual who the order is taken against stay away from the home.

How Can Child Custody Impact Housing Decisions?

Ownership of the marital home may be impacted by child custody and which spouse is granted custody of the child or children. The parent who is granted primary physical custody of the child is typically the party who retains the home.

If no dependent children live at home, the home may be distributed based on the property rules listed above. Until the spouse’s divorce is final, the home will belong to the owner who is listed on the title of the property.

Following the divorce, if one of the spouses is granted ownership of the family home, the other spouse may be given other property that is equal to their interest in the home. Or, the spouse who retains the home may have to buy out the ownership interest of the other spouse.

Is it Possible to Co-Own a Property or Share the Mortgage?

When individuals divorce, it is important to change joint ownership of any properties. In many situations, the spouses held title to their home as joint tenants with the right of survivorship.

It is likely that a spouse would not desire that their ex-spouse retain full ownership of their home if they pass away first. There may also be issues with sharing or co-owning a home following a divorce.

If an ex-spouse acquires a negative judgment or an outstanding loan, it may be possible that the only remaining asset that has any value is the co-ownership of the home. In this case, their creditor can place a lien on that home until the ex-spouse pays off their debt.

If an ex-spouse ends up filing for bankruptcy, the other spouse may be left paying the entire mortgage on their own. For some people, the financial burden will be too high and may lead to foreclosure of the property.

Foreclosure can ruin an individual’s credit and make it impossible for them to buy a home in the future. In addition to these issues, co-owning a home will likely require additional communication between the parties, which may be a negative consideration if the divorce was not amicable.

What Are the Benefits of Mediation?

If the parties in a divorce cannot agree on property division or other issues, mediation is a great alternative to a trial. Mediation employs a problem-solving approach to resolving conflict instead of the traditional, adversarial approach.

A mediator is a neutral third party who is trained in communication and problem-solving skills, which they employ to assist parties make the best possible decisions about resolving their dispute. It is an informal and voluntary process where testimony is not taken and the rules of evidence do not apply.

Benefits of mediation include, but are not limited to:

• The parties are able to keep control over the resolution of their issues;
• Disputes can be settled quickly because a mediation session can be scheduled as soon as the parties agree to use mediation to resolve the dispute, even before a lawsuit is filed;
• Mediation costs are lower than taking a case to trial;
• Mediation promotes better relationships through improved communication and cooperative problem-solving;
• Mediation is known to be private and confidential. The mediator and the parties in the dispute have to maintain the confidentiality of the information disclosed during mediation; and
• Mediation is voluntary; even though a court may order a case to proceed to mediation, the mediation may end at any time by the parties involved or the mediator. Settlement is entirely voluntary as well;
  • If the parties cannot reach an agreement, they still have the right to take the dispute before a judge or jury.

Should I Consult a Lawyer?

If you have any issues, questions, or concerns involving real estate in your same-sex divorce, it is essential to consult with a family lawyer who can explain the property division laws in your state and help you present the best case possible. If you want to gain custody of your children, your lawyer can also help you with that as well as retaining your marital home, if needed.

You can also discuss the possibility of co-ownership of any marital real estate with your attorney and whether or not it may be a good fit for you. Your lawyer can help you draft any necessary agreements for property division in your divorce.