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Ask the Expert: What Happens To Our Family Home In Divorce If I Don’t Want to Sell?

Explore all your options for dividing this important martial asset.


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If you’re like most divorcing spouses, your family home may be one of your most valuable marital assets — and also the asset that carries the most emotional weight. This may be the home where your children took their first steps and celebrated their first birthdays. Your home may be in a great school district where your children are thriving. Your home may feel like an important part of who you are. How could you give any of this up by selling it as part of your divorce?

 We talked to NJ divorce law expert Bari Weinberger about options for the family home and for any insight into the best path for divorcing couples.

Needless to say, there are emotions — lots of them — when it comes to making decisions about what to do with the family home. Your immediate reaction may be to say “No way!” at the prospect of selling it. But here’s where the advice to detach yourself from emotions during the divorce process becomes critical. 

It may ultimately be in your best interests to remain in your family home and negotiate with your ex to buy out their share of the mortgage. However, the decision to do this should be made only after considering all your options.

Can you afford to stay? 

When a couple decides to sell their house as part of their divorce, it can be an effective way to free up equity in the marital property, which is then generally split between spouses. Each party walks away free to start over in the home buying process with what hopefully amounts to a substantial down payment on a new house.

Before deciding to fight liquidation in order to hang onto home ownership, carefully consider one bottom line issue — can you afford your current house all by yourself? What are the costs involved with maintaining the home? Can you afford your utility bills on your own? Are you financially prepared to cover big expenses like a roof replacement? 

Will you need to refinance your mortgage?

To assume sole ownership of the family home, one spouse generally needs to be “bought out” by the other spouse for their share of the home equity; the spouse being bought out also gives up obligation for any remaining mortgage debt. Beware the hidden costs of this! To remove your spouse from the mortgage, you will most likely need to go through a mortgage refinance program that comes with associated fees and closing costs.

Keep the house and give up retirement? 

Some spouses create agreements with stipulations such as one spouse keeps all equity in the home and assumes sole ownership, while the other spouse will get to keep their retirement plan without dividing it. These kinds of agreements are then written right into the divorce decree.

The downside of this kind of this house-for-retirement arrangement? If the housing market has a downturn in the future, it could considerably eat into home equity. The spouse who owns the home may take out home equity lines of credit, which can also backfire should the house need to be sold during a housing slump. On the other hand, untouched retirement pensions may be a more stable bet for the future, especially if retirement sources are limited. Do you really want to negotiate that away?  

Are you prepared to pay a higher capital gains tax? 

When divorcing spouses transfer property between themselves, the tax effects are deferred and the spouse who buys the asset from the other spouse keeps the original basis in the property and becomes responsible for payment of all capital gains taxes on a later sale. The following is a simplified example of how this works:

Suppose that you and your spouse originally bought your home for $100,000 (in tax terms, the original basis) and when you purchased your spouse’s share of the equity, the home value was $400,000. If you sell the home on your own for $550,000 a few years later, your taxable profit would be the sales price minus the original basis, or $450,000. A married couple would be able to exclude up to $500,000 of profit on the sale and would therefore pay no tax. As a now single individual, however, you would only be able to exclude $250,000, and would have to pay capital gains tax on the remaining $200,000 of profit. Are you financially prepared for this tax bill? 

Still want to stay? Here’s a “best of both worlds” solution

If you’re set on keeping the home and will do whatever it takes to make this happen, you might want to explore the “meet me in the middle” strategy of selling your home at a later date (usually up to two years after your divorce). It’s an option that can help you stay in the home and give your children stability as you transition through divorce. It’s a solution that gives you breathing room to figure out your next step.  

By the end of this agreed up sales delay, you can still buy out your spouse’s equity, and are still able to negotiate with assets if you choose to go back to the bargaining table for a post-divorce adjustment in your asset plan. 

You may also decide that you have the closure you need and are finally ready to move on. Perhaps you’ve had enough time and patience to find a less expensive option in your same neighborhood, or your children are going to a private school which is not dependent on remaining in the same school district. Also, two years out from your divorce means two more years of acquired equity in the house, which can be a nice nest egg. 

For more information about the family home and divorce, please check out:

The path home

As you make this difficult decision, here’s one thing to keep in mind: what matters to your children is having a happy, stable family life. Your peace of mind matters much more in making this happen then being in the same home with kids feeling stressed out and miserable all the time. 

Nothing can take away your happy memories, so do your best to make decisions based on the logical reasoning of what’s going to give you and your kids the greatest security. Ask a qualified family law attorney to work through your home options with you to determine the best path forward. 

 

Bari Weinberger is a family law expert, author, keynote speaker, and certified matrimonial attorney at Weinberger Divorce & Family Law Group. In addition to the numerous awards she and her firm have received, and the decades of successful outcomes for families going through difficult times, Bari is a mom herself. She understands that your family law matter can leave you vulnerable and exposed at a time when you need protection, clarity and peace of mind. Finding the right legal counsel adds to the confusion, darkening your situation even more. Weinberger Divorce & Family Law Group is the bright answer to safeguarding your rights, your children, and securing the promising new future you deserve.

 

Need help with your situation? Schedule a free initial consultation online at WLG.com or by calling (844) 280-2536.


Surviving Divorce When Your Ex is a Narcissist

How to make divorce as quick and painless as possible.

Ending a marriage is rarely easy, but when you’re divorcing a narcissist spouse, the challenges you face can feel extreme. 

Narcissist spouses are driven by an urge and feeling of entitlement to “win” at all costs. At every turn, a narcissist’s core personality traits – lack of empathy, manipulative and controlling behavior, and thirst for attention – are there to ratchet up conflict and tension. 

As much as you want to take the high road, a narcissist is often willing to “go there” in hurling false accusations and engaging in unnecessary court battles, turning an unpleasant split into a full-blown nightmare. 

If you’ve been on the receiving end of rage-filled sentiments like… 

You’ll never see the kids again. You’re a horrible parent.  

I’ll make sure everyone knows this divorce was all your fault.  

I don’t care how long it takes or how much it costs — you won’t get a dime from me.  

…you need to immediately take steps to safeguard yourself.

Whether you’re dealing with someone with only a few narcissistic traits, or you suspect your spouse may have full-blown narcissistic personality disorder, family law expert Bari Weinberger has some key information and strategies for you to protect yourself and your children and get through this difficult time. 

Build relationships — and document everything

Psychologically healthy people move through anger. They realize that divorce involves give and take. They’re able to put negative feelings about their ex aside in order to have a positive co-parenting relationship. They understand that fueling a high-conflict divorce damages children. 

Narcissists, by definition, have difficulty making empathy-centered decisions. They want to get their way and they don’t care what kind of slash and burn strategies they employ to do so, including spreading lies and even making false accusations before a judge. 

You can take immediate steps to shield yourself from this high conflict behavior by making it a habit to document everything, especially when it comes to your kids. Get a journal and start logging places you go and people you speak with during the day. Carefully document time with your children and the activities you engage in. Even things like what did you eat for dinner? What movie did you watch? Who else was with you? Take photos and videos. Save letters and cards your children have sent you. Keep a log of phone calls to your kids.

It’s also helpful to nurture relationships with other adults in your child’s life. Check in with your child’s teachers or make an appointment to talk to your child’s pediatrician. The goal is simply that you want these people to know the real you. Don’t bash your ex to them, but be honest. You can explain that you and your spouse are divorcing and that you are doing everything you can to put your child’s needs and well-being first. Ask them for their advice on how to do this and then send a follow up with a note or photo of how you put that advice into action. 

Should your narcissist spouse begin to gossip about “the crazy ex” or “horrible parent” behind your back to these same people, they will know you well enough to see through the narcissist’s act and know these things aren’t true. 

Watch the free webinar: 5 Strategies When Divorcing a Narcissist

  


Don’t give the narcissist what they want

A narcissist wants to stay emotionally engaged with you, even if he or she initiated the divorce. Allowing you to move on feels like a loss of control, something your ex can’t tolerate. In order to keep you engaged, a narcissist may pull nasty punches: barrage you with hostile texts, e-mails, and voice mails; bad-mouth you in front of the children and anyone else who will listen; make false allegations against you, and find any opportunity to make you feel crazy and incompetent. 

It may be tempting for you to respond in kind with your own vitriol. But remember, doing this will just provide the narcissist with the hoped-for emotional response — and invite more drama.

Instead, try to disengage as quickly as you can the next time you’re baited.

You can get help from a trained counselor in specific techniques and coping skills to manage your emotions during interactions with your spouse. It’s also critical to make sure your family law attorney is aware of the personality dynamics in play in your divorce. As I will explain below, a formal agreement about limited communication or even filing for a restraining order may be appropriate.  

Gather financial paperwork as soon as possible

As a means of control, a narcissist spouse may be more likely to drag their heels on providing financial paperwork needed for calculating alimony, child support and asset division. This includes pay stubs and tax returns, bank statements and credit card bills, stock portfolio and retirement account information, and more. In some cases, a narcissist may decide to hide assets as a means of revenge.

To head off this kind of behavior, as early as possible in the divorce process, or even before you file, collect as much financial paperwork as possible. If your narcissist spouse had most of the control over your marital finances, run a credit report to help identify financial accounts open in both your names. If you file your taxes jointly, you can request a copy of your tax return from the IRS. This information may establish a fuller financial picture or even give you clues about possible hidden assets.

Be prepared to litigate—but don’t immediately discount mediation  

Using mediation to resolve a divorce can save considerable time and money. But mediation works best when two parties can discuss issues calmly face-to-face and entertain collaborative solutions. A high-conflict ex is simply not going to participate in that kind of process. On the other hand, because high-conflict personalities tend to feed on conflict, litigation with such a person often spirals out of control, resulting in a protracted, expensive, and emotionally draining court process. 

However, there is a middle ground: Look for a mediator with experience implementing a highly structured process. This kind of mediator will help you stick to an agenda, will encourage frequent attorney consultations, and will caucus as necessary with each of you, reducing the emphasis on face-to-face interaction. Your family law attorney will be able to guide you in choosing the best process for your divorce. 

Keep firm boundaries for safety’s sake

Narcissists believe that the only rules worth following are their own, while other people’s rules are meant to be broken. To maintain order and control in your life, you must be vigilant about setting and keeping firm boundaries. Unless there is a true time-sensitive issue, you really don’t need to respond to your ex’s texts and emails immediately. Stick to your court-ordered parenting time plan. Don’t let your former spouse manipulate you into inconveniencing yourself and your children just to suit his or her schedule.

Depending on your situation, you can explore with your attorney if getting these types of rules and boundaries written into your divorce agreement and/or custody order (specifically) would be appropriate in your case.

Also, be aware of the difference between a narcissist who is annoying and a narcissist who has crossed the line to harassment or stalking or physical violence. In these cases, legal remedies such as taking out a Temporary Restraining Order may be necessary to keep you and your children safe. When warranted, criminal charges may be appropriate.

Better days ahead 

It’s absolutely not fair that you need to deal with all this in your divorce. You deserve safety, peace of mind and a fresh start. And the good news is that help is available to get you these things. 

I also want you to keep in mind this silver lining… 

All of the hard work you’re putting in now during your divorce to protect yourself and your kids from the narcissist’s conflict and drama can pay off greatly in the long run. You’ve created new boundaries and habits. Keep them up and get ready for many more peaceful days ahead. 

 

Bari Weinberger is a family law expert, author, keynote speaker, and certified matrimonial attorney at Weinberger Divorce & Family Law Group. In addition to the numerous awards she and her firm have received, and the decades of successful outcomes for families going through difficult times, Bari is a mom herself. She understands that your family law matter can leave you vulnerable and exposed at a time when you need protection, clarity and peace of mind. Finding the right legal counsel adds to the confusion, darkening your situation even more. Weinberger Divorce & Family Law Group is the bright answer to safeguarding your rights, your children, and securing the promising new future you deserve.

 

Need help with your situation? Schedule a free initial consultation online at WLG.com or by calling (844) 280-2536.


Ask the Expert: How Do I Avoid Costly Divorce Mistakes?

If you have to get divorced, you want it to be swift, painless, and as effective as possible for you and your children. In reaching these goals, there is simply no room for error. 

But given the complexity of the divorce process, and the need to navigate it when your emotions may be running sky high, it’s all too easy to make costly and time-consuming mistakes. When it comes to safeguarding your rights, children and your future, even a simple paperwork oversight can set the stage for a divorce settlement that could devastate you for years to come. 

Are you about to make a misstep? In this article, divorce expert Bari Weinberger takes you through some of the costly mistakes made in divorce — and how to avoid them. 

Mistake: Viewing sole custody of the children as the only option

New Jersey family law is gender-neutral when it comes to parenting time and custody, meaning both parents have rights to their kids. Generally, the courts believe that it is in a child’s best interest to spend time with both his or her parents and typically favor shared custody arrangements whenever possible, unless there are specific reasons otherwise.

Parents often make the mistake of fighting tooth and nail for sole custody in divorce because they are angry with their ex and do not want them to have time with the children. In most situations, this can be an unrealistic position and will lead to an emotionally and financially costly court battle that is unlikely to be won. 

Before you make any decisions, take the time to understand what types of custody there are and what they entail. You may find that after discussing the custody options with a qualified family law attorney that other arrangements are available that give you ample time with your child and help you transition to co-parenting in a peaceful way. 

Mistake: Not considering all your options when it comes to the family home. 

Some divorcing parents dig in about keeping the family home because they don’t want more change for their children. Others are emotionally attached to their home because they have invested so much time and work in it over the years. 

Before deciding to fight for taking over sole ownership of the home, however, carefully consider how you will be able to financially manage not only the mortgage on a single budget, but also the upkeep and maintenance of the house. What if the roof leaks or the boiler stops working? Would you have enough liquid cash to pay for these kinds of major repairs? Will the need to maintain basic home maintenance like having the driveway plowed in the winter or the lawn mowed in the summer deplete too much money from your family budget? 

Another consideration is whether you’re giving up other valuable assets (i.e., retirement savings) in order to buy out your spouse’s equity. What will this mean for the big picture of safeguarding your future? 

Bottom line: If your decision to attempt negotiation for full ownership of the family home is solely based on your emotional ties to the house, consider this a red flag to step back and see how the house fits in with your larger financial picture.

Mistake: Letting emotions rule your case

Emotions like feeling angry and hurt are understandable and certainly expected when a marriage ends. The problem occurs when negative emotions prevent you from at least attempting to work out an agreement with your ex through mediation, which is a golden opportunity to save time and money during your divorce. 

The overburdened family courts in New Jersey strongly favor settlements and encourage couples to come up with agreements that they can live with.

It is advisable to approach your divorce in a businesslike, neutral way. Whether we like it or not, New Jersey is a “no-fault” divorce state, meaning that, unless there are really exceptional circumstances, one spouse does not receive more money or property in the divorce just because the other spouse was unfaithful or made other poor decisions.

 

Mistake: Not being strategic about your divorce filing date

Most people put little thought into the date that they file the Complaint for Divorce; however, the date you file is nothing short of critical because the filing date fixes a cut-off time stamp for equitable distribution of 401Ks and other retirement plans and benefits, and other investment assets and debts. The courts can also use the filing date as a hard start date for child support obligations. 

How can a filing date go wrong? Let’s say Sarah and John separated but did not make a formal agreement about child support. Months drag on and John is sporadic at best about sending Sarah a check. Sarah is frustrated because she is having a hard time paying the bills. She finally files for divorce, something she knows is long overdue. After that, John completely stops paying her child support. Sarah goes to court and explains that she and John separated a year earlier and that he paid the $500/month that he verbally promised only a few times. Sarah asks for retroactive support to cover all the child-related costs she needed to shoulder alone. She was shocked when she found out that, at most, she would probably only get one month of support dating back to her actual filing date. Had Sarah gone ahead and filed when she knew the marriage was over—a year earlier—she would be able to recoup the thousands of dollars in support she lost out on. 

If you’re not sure about your filing date, get a free consultation with an attorney to understand your best options. Your financial future will thank you for it. 

Mistake: Taking legal advice from friends and relatives

It’s wonderful to have friends and family offer support as you start the divorce process. I encourage you to get all of the emotional and personal strength you need from loved ones, but steer clear of legal advice unless they are a practicing family law attorney. There are many reasons to shy away from any legal advice from friends and family not the least of which is that rules governing divorce in New Jersey, including child custody matters and asset division, are constantly changing and complex. Though well-meaning, you may be on the receiving end of mistaken and/or outdated advice that will cost you excess time, money and stress — and you don’t need any more of that! 

Your path to your bright new future starts with making the best decisions possible during your divorce. The good news is that some of the most vexing problems that erupt in divorce are often completely avoidable. 

In the end, your divorce will come down to the details! When you get these right, the peaceful and safeguarded future you want can be waiting for you.

Want to learn more? Here are the top 5 costly mistakes of divorce, which includes why choosing the wrong grounds for divorce could end up costing you more time, money and stress. 

Bari Weinberger is a family law expert, author, keynote speaker, and certified matrimonial attorney at Weinberger Divorce & Family Law Group. In addition to the numerous awards she and her firm have received, and the decades of successful outcomes for families going through difficult times, Bari is a mom herself. She understands that your family law matter can leave you vulnerable and exposed at a time when you need protection, clarity and peace of mind. Finding the right legal counsel adds to the confusion, darkening your situation even more. Weinberger Divorce & Family Law Group is the bright answer to safeguarding your rights, your children, and securing the promising new future you deserve.

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