In my years as a family court judge, I encountered many divorces where the parties could not settle their case due to a disagreement over whether to sell the marital home. Specifically, a party wanting to keep the home often had highly rigid and financially unreasonable expectations about their ability to afford and maintain the home in the future without downsizing.
Understandably, many people going through a divorce feel comfortable in their current homes and do not want to move. However, in some cases, maintaining the home is simply not an affordable option. For example, if the parties were already struggling to make mortgage payments while married and sharing expenses, it is mathematically logical that this issue will persist—or even worsen—after the divorce, when one household physically divides into two.
Even if a party has enough funds to keep the house and pay the mortgage after the divorce, the payment may be substantial enough to consume the overwhelming majority of one’s income or support payments. This would leave less money available for other purchases than would be the case with a less expensive residence.
A party who rigidly expects the other party to continue paying all expenses after the divorce, including the mortgage, may need to reconsider whether such a result is logically attainable and reasonable. If a court order requiring such an arrangement is likely to impoverish the paying party—leaving them unable to afford a reasonable budget for themselves—a court may refrain from entering such an order. Generally, resolutions should be reasonably balanced and fair to both parties, not just one.
Many people are so intimidated by the prospect of moving that they don’t even consider alternative options, instead clinging to a home that may be very hard to afford after the divorce, even when considering all potential sources of money, such as employment, spousal support, or child support. However, every divorcing party owes it to themselves to at least explore other housing options and their associated costs before automatically ruling out moving as a possibility.
Before serving as a judge, I was an attorney for over 20 years. During that time, I encountered many divorcing parties who initially refused to even consider moving, only to completely change their minds after meeting with a rental agent or realtor and seeing for themselves what options were available. Some parties literally changed their positions overnight after giving themselves a fair chance to explore homes that were nice, more affordable, and easier to maintain. Instead of burdening themselves with an unaffordable home, they suddenly wanted to sell the marital home immediately and access whatever equity was in it for other important expenses as they began the next chapter of their lives.
There is no one “right” or “wrong” decision when it comes to keeping or not keeping the marital home. The key is that open-minded individuals need to explore all reasonable options before making a sound financial decision about what they truly want or need to do in their particular case. For example, some parties decide they want to move but prefer to wait until their children finish a certain grade of school before selling the home. If a couple is getting divorced and has a 16-year-old son or daughter, they may wish to wait until the child graduates high school before selling the home. However, such an arrangement may be more difficult if the child is younger and the mortgage is high and difficult to afford.
There are, of course, many other relevant considerations. Sometimes, a party who wishes to keep the marital home will buy out the other party’s interest in the home through refinancing. While divorcing couples can agree to such an arrangement, it is important for the person keeping the home to first consider whether they can afford the mortgage payments after the buy-out and refinance. Otherwise, that person may cause themselves substantial economic stress and harm by making a financially unwise decision to cling to the marital home at all costs.
In conclusion, decisions regarding the marital home should generally be based on reason, rather than emotion. If you are facing this issue in a divorce, it’s wise to fully discuss the matter with an attorney and a financial expert before determining your position regarding the marital home.
Lawrence Jones is a contributing columnist and former Judge of the New Jersey Superior Court, having retired from the bench in 2017. He is the author of numerous precedential judicial opinions and published legal articles, and is a speaker and educator on legal issues. He currently practices mediation and arbitration. You may visit Judge Jones’ website at www.LawrenceRJones.com. Every case is unique, and this column is not intended to provide specific legal advice regarding any individual’s matter.
