When a couple who owns property together divorces, the Court will issue what is known as a Divorce Decree, either by agreement of the parties via a Property Settlement Agreement or following a hearing on the merits generally referred to and known as an Equitable Distribution Hearing.
The Divorce Decree, among other things, is intended to and should set forth provisions for the division of marital assets, provide for the actual transfer of jointly owned real estate between the parties to the Divorce, although it should, or should set forth provisions as to which of the parties is to retain jointly owned real estate following the Divorce.
Importantly, however, many couples do not realize that they should prepare a new deed if one of them is going to continue to own jointly owned real estate, such as the marital home that they may have shared together during the marriage, and this can present serious problems down the road.
As an example, you may marry someone who had been previously married and divorced, and move into the home they once shared with their ex-spouse, where you live together and eventually pay-off the existing mortgage, only to find that you do not actually have any ownership interest in the property, and worse yet, that the ex-spouse still has an ownership interest that they can now assert, thereby potentially exposing the property to a forced sale.
While it is possible to keep a house in both names after a divorce by way of co-ownership or joint ownership, there are both benefits and drawbacks to such a decision. For example, co-ownership is helpful when neither of the parties can afford to buy-out the other, or if refinancing is not feasible. This will allow both parties to continue to share the costs and expenses until such time as one of them is financially able to buy the other out of his/her share. Additionally, when children are involved in the divorce process, joint ownership is an alternative to avoid further disruption of their lives which would result if they were forced to move. The parties may also choose to hold onto jointly owned real estate while waiting until market conditions improve, so that they can achieve a more favorable sale price.
Conversely, continued joint ownership means that both parties remain financially tied to and responsible for the property. This can lead to contention and disagreements and possible action through the Court by one of the parties against the other for contribution, reimbursements, and possibly for the forced sale of the property.
Another potential issue with continued joint ownership presents if your ex-spouse is on the deed to the property but not the mortgage. In this situation, your ex-spouse owns the house but is not liable for the mortgage loan nor the related monthly payments. Accordingly, you are solely liable for making the mortgage payments each month, whereas your ex-spouse continues to have a separate and legally enforceable right to reside in the residence as a legal owner. Even worse, your ex-spouse could force the sale of the property by an Action in Partition to obtain fair market value of the property.
It is important that you speak with an attorney experienced in such matters in so as to ensure that your rights are properly protected in the underlying divorce action.
The Law Firm of DiOrio & Sereni, LLP is a full-service law firm in Media, Delaware County, Pennsylvania. We strive to help people, businesses and institutions throughout Southeastern Pennsylvania solve legal problems – and even prevent legal problems before they occur. To learn more about the full range of our specific practice areas, please visit www.dioriosereni.com or contact Robert B. George, Esquire at 610-565-5700 or at [email protected].
DISCLAIMER
The information that our blogs provide does not, and is not intended to, constitute legal advice; instead, all information is for general informational purposes only. Information in our blogs may not constitute the most up-to-date information. Readers of our blogs should contact a qualified attorney to obtain legal advice with respect to any particular legal matter. No reader should act or refrain from acting on the basis of any information in our blogs without first seeking legal advice from a qualified attorney. Only the reader’s own attorney can provide assurances that the information contained in our blogs – and any interpretation of it – is applicable or appropriate to the reader’s particular legal issue. Use of, and access to, the information in our blogs does not create, and is not intended to create, an attorney-client relationship between the reader and our law firm or our blog authors.
Like what you see? Join our mailing list
