Dividing real property during a divorce can be a complicated process, especially when it is not clear if the property is part of your marital property. In this article, we will discuss how real property is treated during a divorce and provide information on what to do after your divorce is complete.
First, it is important to understand what real property is. Real property refers to land and anything that is attached to the land, such as fixtures (improvements), houses, and buildings. However, mobile homes are not considered real property because they are not attached to the land. The land the mobile home is on would be considered real property.
When dividing real property during a divorce, it is essential to determine if the property is separate or community property. Separate property is any property that you or your spouse owned before the marriage or that you received during the marriage as a gift or inheritance. Community property is all property bought during the marriage with income received during the marriage.
If both spouses jointly received real property as a gift or inheritance, it is still considered separate property. The spouses would be co-owners and each already own one-half of the real property. However, if real property was purchased during the marriage with only one spouse’s name on the deed, it is still considered community property. There are exceptions to this rule, such as if the real property was bought with one spouse’s separate property.
If the real property is separate property but was refinanced during the marriage, the real property will remain separate property. However, if both spouses’ names are on the refinance documents, it can be argued that the spouse who owns the real property gifted 50 percent of the real property to the other spouse as their separate property.
When it comes to dividing real property during a divorce, if the real property is separate property, the court cannot award it to the other spouse. However, the spouse claiming it to be separate property must provide the court with clear and convincing evidence of how it is separate property. If the real property is community property, it will need to be divided during the divorce. The parties will need to determine the value of the real property and decide how to divide any equity or debt.
The most common type of real estate divided during a divorce is the marital home. The parties may agree that one spouse will keep the house and give the other spouse half of the equity, or they may agree that one spouse will keep other assets to offset the value of the house they were supposed to receive. If the parties cannot agree on how to divide the house, the judge may order the parties to sell the house or award the house to one party.
It is important to note that you do not give up any rights to the marital home if you move out during the divorce. However, a judge may consider the fact that one spouse has moved out when making a decision about who should keep the house.
Finally, it is essential to understand that the process of dividing real property during a divorce can be complex and time-consuming. It is crucial to consult with a qualified attorney who can guide you through the process and protect your rights. Once your divorce is final, it is important to take steps to ensure your rights to the property are protected, including updating deeds and other legal documents as necessary.
In conclusion, dividing real property during a divorce can be a complicated process. Understanding the difference between separate and community property, as well as how real property is divided during a divorce, is essential to ensure that your rights are protected and that you receive a fair and just settlement. Consult with a qualified attorney to guide you through the process and protect your rights.