One of the most troublesome issues in an Orange County divorce is what to do with the marital home. For many divorcing couples the family residence represents the family’s life savings in the form of equity built up in the house. Depending on the parties’ goals, there are many options to disposing of the community’s residence. If the parties have minor children and it is feasible for one party to live there with the children, the divorcing couple might consider a delayed sale order, also called a Duke order, until the parties’ children reach a certain age or until a certain event happens. For some people who are “upside down” on their mortgage and they are still hoping the market may recover enough to break even or turn a small profit, this might be an option to wait to sell the house a few years down the road. So long as the mortgage is paid and there is no risk of default, it may be prudent. It is a good idea to have contingency plans built into the judgment, just in case some unfortunate event puts the house at risk.
If you and your spouse cannot get along very amicably over the time period necessary for a delayed sale, then there is little alternative to either one party buying the other out of his or her equity position or simply selling the residence and dividing the net proceeds from sale equitably, if there is any equity left, that is. As is common these days, if your house has “negative equity,” you might consider a short sale or other method of leaving the house and, hopefully, the liability, behind you. In certain instances loans on real estate may be “non-recourse” and allow the purchasers to walk away from a bad investment. In these situations, it is a good idea to consult a real estate attorney before doing anything you may regret, fiscally speaking. Many of the laws dealing with short sales of family residences are due to sunset in 2012, if you are considering such an option, you had best consult an attorney qualified to advise you.
As in any mediated divorce, your own ability to creatively problem solve is your best asset. If you and your spouse can agree to cooperate with your real estate issues, and it is a financially feasible option, you can come up with almost any solution designed to maximize the benefit to everyone.