The Intersection of Divorce and Real Estate Law - What Happens to Marital Domiciles?

If husband and wife own real estate in Rhode Island and are getting divorced and have no minor children then there are many possible dispositions concerning the marital domicile.

The parties agree to sell the property

There may be negotiations during the Rhode Island (RI) Divorce concerning one spouse buying out their husband or wife's share in the property. The parties can agree to a single appraisal or hire their own appraisors. Some parties simply agree to the fair market value and do not need an appraisal. If husband and wife's appraisals are different then they can negotiate the fair market value of the property. After determining the fair market value of the property, the parties should look at all mortgages owed and determine the equity of the property. The equity in the property is the difference between the fair market value and all liens and mortgages. This article only pertains to divorce and family law in Rhode Island (RI).

The equity in the property will determine what amount the person who is refinancing should pay the other party to buy out their equitable share. At the refinance closing, husband or wife may deed the property by quitclaim deed. Upon transfer of the deed, the spouse will receive their agreed upon share of the marital equity.

If the parties cannot reach an agreement and there are no children, the property will probably be ordered to be sold at the Rhode Island divorce trial.

In some cases, one spouse may agree to take less then half of the equity in the property. This could be done for numerous reasons including: disparity in earning capacity, admissions of an affair or infidelity, offsets from other assets etc.

Parties may also agree to a multitude of different scenarios which might include one party living in the marital domicile and refinancing in the future to buy out the other party's share. This usually involves the party who remains in the house granting a mortgage to the other spouse.

There is really no limit to the types of agreements that parties can reach and it is possible that the parties could trade off assets in which one spouse receives a different asset such as a retirement account in exchange for the other party obtaining title to the real estate. Be careful becuase there may be federal tax implications to such tradeoffs!

This can get tricky because a transfer of the property without a current refinance will not take the person who deeded the property name off of the mortgage and promissory note.The person who deeded the property without refinance must make sure that the other party actually pays the mortgage, taxes and insurance on a timely basis otherwise their credit could be effected.

You should seek legal counsel from a Rhode Island (RI) divorce and family law Lawyer / Attorney concerning all of the possible scenarios.

Division of the marital domicile when parties have minor children.

If both parties agree that one spouse should reside in the marital domicile with the minor child / children they can agree to a deferred sale of the property. The person who is not living in the house with the children often receives a mortgage to secure the rights to receive money in the future.

If the parties cannot resolve this issue the court will determine whether or not it is in the best interest of the minor children to defer the sale of the marital domicile. The court must look at whether or not the parent who is residing in the marital domicile can afford the mortgage, taxes, insurance and upkeep taking into account any child support, alimony or income that the person receives. The RI family Court must also determine how long the sale of the house should be deferred in the best interest of the children.

If the parties cannot determine issues of child custody, visitation and physical placement then the issues become a lot more confusing.

Legal Notice per Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer/ attorney as an expert or specialist in any field of practice.