The marital home is understandably one of the most important assets in any divorce, and unsurprisingly, one of the biggest sources of contention. In addition to being the most valuable asset between most couples, the marital home may be the only home one's children are familiar with. Even when children aren't involved, the spouse who was largely or solely responsible for the mortgage may feel that he or she is entitled to keep the home. Unfortunately, New Jersey's equitable distribution laws require the examination of numerous factors in order to divide any asset acquired during the marriage. Equitable distribution also applies to assets into which a spouse made contributions, financial or otherwise.
Regardless of your reasons, taking on a property as valuable as a house is about much more than whether you can keep up with the mortgage and taxes. First, you and your ex will have to agree on whether to keep both names on the mortgage. Even more important, can your soon-to-be ex be removed at all? If you are unable to refinance a mortgage in your own name, you may need to offer remedies such as agreeing to sell the house if you miss so many mortgage payments. This is, however, less of a problem if you're going to be receiving alimony, since the amount should factor in the mortgage payments. Still, don't be surprised if your spouse asks for conditions in the event of missed mortgage payments, since his or her credit is on the line.
If you've already been approved for a refinanced mortgage, your main concern is an accurate valuation of the house, which is needed in order to buy out your spouse. One problem many couples run into is fluctuations in the housing market, especially if their divorces take a year or more to finalize. If the housing market takes a downturn during that time, you could end up with a house that's significantly lower in value that what you agreed on, but you would still have to buy out your ex at the agreed upon price. Another important factor concerning declining markets is whether you should bother retaining the house at all. If you know the market is bad, particularly if you're not planning on keeping the house long-term, you may be better off asking for a larger cash payment or other assets that will continue to appreciate in a down market.
Depending on the issues in your case – custody, child support, tax liabilities, etc. – there may be numerous other factors that you will need to consider. That's why it's important to discuss all your distribution options with an experienced attorney prior to signing a marital settlement agreement. Keep in mind that appealing a finalized divorce agreement is extremely difficult and costly, especially when you asked for an asset and received it. For more information on your property distribution rights and legal options, please speak with the attorneys of Villani & DeLuca, P.C.