In most divorces, the family home is the largest asset that will be divided in the litigation. In addition to the purely financial considerations, many people are emotionally attached to their home. Some people will put keeping the house as the most important priority in securing a proper environment for their children. For parents with school-age children the idea of turning their lives upside down and taking them away from their friends can blind them to certain realities. The most important steps that you can take to protect yourself is to talk with your attorney. Here are some things to consider:
1. Can you afford to keep the house? Your attorney should be someone you trust to realistically assess whether keeping your home is a good financial decision. You should also talk about what price you would be willing to pay in the divorce negotiation to keep the house. If you give up everything else in order to keep the home, and then find that you can’t cover the mortgage, property taxes, and maintenance, you may end up in serious financial trouble. The divorce court will look at your ability to pay for the home along with your spending habits during the pendency of the divorce to determine whether it will order the home sold or awarded to you.
2. Can you work it out with your spouse? If you and your ex-spouse can set aside your differences enough to negotiate the home’s division, all sides (including the children) will benefit. Again, frank and open discussions with your attorney will provide benefits. If your attorney knows how important keeping the home is to you, they can negotiate a palatable solution. It is always better to negotiate a good agreement rather than letting the court decide these important issues for you. Another thing you and your attorney can do is PREPARE. If you want to keep the house, and intend to refinance the house into your name only, strong consideration should be given to doing the refinance while the divorce is pending. If you can’t qualify for a loan while the divorce is pending, you may be unlikely to qualify for a loan afterwards either. In the meantime, you can’t qualify to buy a new house either because your name is still on the old mortgage.
3. Do you understand how the court will approach the division of property? Under Ohio law, it does not matter if your spouse is more “at fault” in causing the divorce. The court will not seek to punish a spouse, but instead will seek to divide the property according to law. It also does not matter if the home was previously owned or titled to one of the parties. In Ohio, just because the house is titled in one parties’ name or the others, only, does not mean that the house is separate property under Ohio law. Just because one of the parties owned the house prior to marriage, does not mean that the house is STILL separate property. It may have become “transmuted” into marital property under Ohio law.
4. Who do you want to sell the house? It is also preferable to discuss the prospect of selling the home with your attorney. It may be in your financial interest to seek ownership of the home with an eye toward selling it. You may not trust your ex-spouse to cooperate with a realtor or be diligent in keeping up the property. You may also feel powerless if your ex-spouse is able to nix any deal by being inflexible on the sale price or other minor contract issues. You may also think that if you are awarded the home and make some reasonable repairs the value of the home will increase significantly.
The way we will handle your case involves a three-step approach: Advising, Negotiating and Litigating. Advising is more than helping you fill out forms and charging a retainer fee; it is a meaningful two-way communication that shapes what the attorney client relationship will become. Failing this dialogue, its absence will become achingly apparent when the attorney goes behind closed doors to discuss your case. Negotiation is also a two-way street involving a realistic acceptance of your position, articulation of the goals of your case and the realities of the adversarial process. If you have communicated successfully with your attorney, you can expect to prepare a legal strategy that will focus on your desired outcome. Those parameters will be the basis of all discussions with the other side. Litigation results when you cannot reach a desired result through negotiation. Your attorney must prepare for litigation from the first consultation in order to maximize the chances of reaching your desired result. The work of an attorney in the court room is the pinnacle of years of training and experience. If your attorney is unable or unwilling to litigate, your ability to negotiate a favorable settlement will be compromised.
Jamie L. Anderson dedicates her practice to representing families through the changes of a divorce or dissolution. She has made herself one of Greene County’s most prominent matrimonial attorneys and will use her experience to secure your family, your finances and your future. Jamie practice matrimonial law throughout the Miami Valley in the Greene, Montgomery, Clark, Miami,Warren, Fayette Domestic Relations and Juvenile Courts. Contact Jamie L. Anderson at (937) 879-9542 or visit www.OhioDivorceAttorney.com to learn more.