Dividing Real Estate in a Divorce

By Henry F. Lewis on November 26, 2021

model house by justice scalesThe divorce process is rarely described as pleasant. But even among the many unpleasant aspects of a divorce, the division of assets is known to be especially difficult. When it comes to dividing assets, and real estate in particular, things tend to get complex and contentious.

Divorce lawyer Michael A. Gardner works with his Oakland, CA, clients throughout divorce proceedings and guides them through dividing real estate in a divorce, so that they negotiate a settlement that fairly and justly accounts for real estate value, and enables them to move forward from their divorce in a positive position.

Who Gets the House?

For spouses who own property together, one of the first questions to come up in a divorce is “who gets the house?” California is a community property state, which means that, regardless of whose name is on the deed, if a house was acquired during the marriage, each spouse is entitled to an equitable share of the home’s value.

As far as how to ensure that a house is divided equally, there are generally three options to consider: selling the house, having one spouse buy the other out, and deferring the sale of the house.

Selling the House

If spouses agree to sell their marital house, the proceeds from the sale will be split equally among them. Many consider this to be the simplest way to divide real estate. Selling a house offers both spouses a clean slate, and provides each with equity that can go toward a new residence. If spouses choose to sell their house they should keep in mind that they will only collect equity after any shared debts have been paid off.

One Spouse Buys the Other Out

If one spouse feels strongly about staying in the marital house, they can offer to buy the other spouse out. The spouse who keeps the house can refinance the current mortgage loan and pay the other spouse their share of the home’s value, or they can “buy” the other share of the home by offering other marital assets or shared real estate that is equal in value.

Deferring the Sale

If it is not a good time to sell and neither spouse is desperate for the money, they can agree to defer the sale of the house to a later time. If one spouse stays in the house until the sale occurs, they would typically take full responsibility of the mortgage payment.

Dealing with More Complex Real Estate Division

Choosing what to do with the marital house is one thing, but some spouses have much more complex real estate assets, including residential and commercial properties. Michael A. Gardner has extensive experience with complex property division issues, and is prepared to assist his Oakland clients in finding solutions that make sense for both parties and allow his clients to move forward from the marriage in a positive position.

Schedule a Consultation 

If you are filing for divorce and would like more information about real estate division, divorce lawyer Michael A. Gardner can answer any questions you may have. To learn how we can be of assistance throughout your divorce proceedings, send us a message online, or call our Oakland law firm at (510) 451-4822.

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The needs of your family are always at the forefront of our legal services. Whether through litigation or mediation, we believe that reaching a fair, efficient solution with minimal negative impact to your family is of the utmost importance. Henry F. Lewis

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Oakland Office

1939 Harrison St
Ste 210
Oakland, CA 94612

Open Today 9:00am - 5:00pm

More Info Directions (510) 451-4822