Property Distribution in a Divorce Doesn't Have to Be Equal -- Here's Why

Rachel Gruetzner

Many times in a divorce, spouses think that the distribution of property must be equal. In most cases, that is not the law. The law in the jurisdiction where I practice (Michigan) and in many other jurisdictions is that the division of property must be equitable. So, there are as many solutions as you can think of in order to reach that equitable division, but if you are doing something other than selling the joint property and splitting the proceeds, then it generally requires either an agreement of the parties or a fact-finder (whether it’s a judge or an arbitrator) willing to ruminate on alternatives outside of sell and split or refinance and buy-out.

There are a lot of considerations when you’re deciding what to do with a jointly owned home. Who is going to continue to live there? Can they afford it on their own? Does the home have positive equity? Does the party who is vacating the property want to buy a home of their own in the near future? If so, does that party have the creditworthiness to do so if the joint mortgage remains on their credit report? Does the party who is staying have the ability to make that monthly mortgage payment? What if they miss a payment? Who will be responsible for the repairs? What about insurance and taxes?

As for a home, if the parties jointly own the property, but want to continue to own it together post-divorce, and continue to either live there together or to share possession of it, there are ways to do that. However, that would generally require a divorcing couple to get along, which is rare. There is a lot more to being a homeowner than just having access to the property.

If you and a spouse are sharing a jointly-held property together post-divorce, you also have to think about who is going to be responsible for payment of taxes, insurance, and repairs. Then, how do you determine which repairs are necessary versus which are cosmetic? What is considered “waste?”  Would you be upset if your former spouse lived in the home and failed to clean the gutters, and a heavy flood came and caused water damage to your soffit? Who would be financially responsible in those circumstances? Whose job was it to clean the gutters in the first place?

These are the types of things that divorcing spouses who want to remain joint tenants on a property have to think about before they enter into the settlement agreement.

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