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Honey, I’m Leaving You…But What About The House?: Real Property And Divorce

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Litigation, Mediation, Collaborative Law, Arbitration, Conflict Resolution, Alternative Dispute Resolution, plus many more. The list is long when it comes to the words thrown your way when you mention the term “DIVORCE”.  Ah yes, that evil word that makes people cringe when they think about both the fact that they are in a marriage that seemingly “just didn’t work” and the potentially large legal bills that are associated with the debates about years past and how it will affect the years moving forward.

Consulting with both a reputable attorney and mediator can help you determine your best option when it comes to the split, but how does one know who is best to represent the sale of their biggest asset…the family property?   This is a tough question and can be very confusing, but is also one that should not be taken lightly.

Along this road, you will find many designations that real estate professionals hold.  From Real Estate Divorce Specialist (REDS) to Real Estate Collaboration Specialist-Divorce (RCS-D) and everything in between.  While some of these designations can add value to the process, many of them are more about placing letters behind a realtors name than they are about functional training.  In the greater scheme of things, there really isn’t a 6-12 hour online or video course that can replace the 100’s of specialized training hours and years of experience that qualified legal professionals can bring to the table.

We, as real estate professionals, need to remember that we are not lawyers.  We are not allowed to give legal advice, nor should we ever want to place ourselves or our clients in a position where misrepresentation or undue influence can occur.  The best thing that training can do is help us understand what you, the client, are going through within your process and with some direction of your attorney/mediator, develop a strategy that works for everyone.

These are a number of critical points and tips that divorcing couples need to focus on when deciding who to help them with the sale of any real property and how to navigate the process.

True professionals hold all the weight:

Utilizing a Conflict Resolution Coaching Program to assist as needed is one of the best tools you can take advantage of throughout this process. Our program is made up of a team of experienced attorneys and mediators ALL of which have received their Masters of Laws (LL.M.) in Dispute Resolution.    So, why is this important?  Because it’s not about the designations, it’s about utilizing a team that has the skills, legal background and ability to achieve the best results.  Anyone can call themselves a mediator or conflict resolution coach, with very little training and almost no real world experience.  Yet, nobody wins in a situation like this, which is why quality, training and experience are paramount to protecting the interests of a client.

Develop a plan:

Like anything else in the world, things can change…and likely will.  Understanding the direction and goals of both parties is crucial to a successful result, but even more important is being able to make little course adjustments to account for subtle differences.   Similar to piloting an aircraft, we have to account for changes in the wind in order to stay on course and end up where we want to go, and without running out of gas.  These changes need no be drastic…only slight “pivots” are needed to maintain the momentum and direction towards a result that is favorable to both parties.

Separate Emotion From Finances

This is where a lot of people fail.  Typical family-centric real estate transactions are based on an emotional need to satisfy lifestyle goals.   For example, a couple in a bidding war may spend $100,000 more on a home in their perfect neighborhood, with perfect schools and that cute little walkway that they want to come home to every night.   In dealing with the sale of the family home in divorce, the goals are to not only net the highest price for the home, but also to do with with the least amount of stress or strain on the parties, including the children, who are likely going through a tremendous amount of pent up stresses due to the current situation and being displaced from their home.  This process should be well laid out prior to going to market, and a solid plan developed to accomplish the goals.

One of the common issues we face is when one spouse tries to make it difficult to show the home, limiting the exposure, and therefore placing strain on the ability to execute a sale.  This could be for a multitude of reasons…sometimes simply out of spite or anger, and other times because they did not want to sell the home in the first place.  Whatever the reason, my suggestion is that expectations for showing and timelines be set when signing the listing contract.  If the divorce is less than amicable, bringing in the attorney/mediator for guidance is a great idea, as they have tools such as addendum’s and other requirements they can include in the listing contract to prevent disrupting the sales process.

The Premature Buyout 

In many cases, one of the parties pushes for a sale and the other stands strong about buying out the others half of the home equity.   While this sounds like a fabulous idea to minimize the strain on the kids and the existing lifestyle, without proper planning, it can up being a financial flop…and here’s why.   When one party buys out the other, generally the person maintaining possession of the property would require a bank loan (mortgage) in order to execute the payout.  So, now they are paying a mortgage, property taxes, heat, water, electricity, upkeep, etc…on one salary and maybe some child/spousal support.  This can an incredible financial burden for one person to assume, in addition to all of the other life expenses.  What typically happens in these cases is that the party maintaining possession ends up selling the property within the year.

Bottom line, consider all aspects of home ownership on BEFORE making a decision to keep the home.

Avoid the gimmicks

We live in a very capitalistic society, and there are people behind every corner ready to sell you on something that you just cant refuse.   Be aware that during this process, you are more vulnerable, and people may attempt to take advantage of that.  That service that is willing to declutter and clear out your home, including appraising and auctioning off artwork.  Are they reputable?  Do they have results that back up their offer? Or, that knock on your front door from a rookie agent that says he got your name from a publicized list of homes of  couples engaged in divorce (yes, these do exist) and that he will sell your home with only 1% going to him (and maybe even buy it from you if it doesn’t sell).  What do you think you’ll get out of that deal?  Smells like a disaster waiting to happen.

When it comes to investment property and the disposal of other real estate assets, I would always suggest contacting a Trust & Estates Attorney to ensure that you are protected from potential tax issues.  One of the common products being thrown around these days is the “Deferred Sales Trust” which is just a unique name for a Qualified Personal Residence Trust (QPRT). These are part of a very sensitive tax strategy to shelter you from immediate capital gains taxes but can be disastrous to your estate planning if not handled correctly.  My advice is to never engage any outside company without proper guidance first.

Your attorneys and real estate professionals have a fiduciary obligation to protect your interests and steer you in the direction that makes sense for your situation.   Make sure you consult with them before any decision is made or contract entered into.

Conclusion:

As you can see, there are a lot of considerations when dealing with property in a divorce situation.  Although we have only scratched the surface, it’s crucial that you deal with agents who not only have experience in this process, but also have a strong support team to back them up.

 

Michael Winestone is a real estate professional with John Aaroe Group in Beverly Hills, California.   Michael works with both Family Law and Estates attorneys in dealing with client matters pertaining to Divorce, Trust & Probate Real Estate.  Michael is known for his proprietary conflict resolution coaching program which integrates top performing mediators, as well as having unique positioning as a licensed pilot and using aviation to maintain business efficiencies across the state.  

Michael can be reached by email at michael@michaelwinestone.com or follow on Facebook or Twitter

www.MichaelWinestone.com

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