The matrimonial home is anywhere the husband and wife resides during a marriage, regardless of whether it is a single-family home owned by the couple, a rented apartment, or a mobile home. Under the Family Law Act, the matrimonial home is always dealt with separately from other marital property within separation agreements and divorce decrees. Regardless of who owned the home at the beginning of the marriage, the matrimonial home is always divided equally, meaning that, upon the sale of the home, both spouses receive an equal share of the proceeds.
During a property division, immediately sell the home and divide the sale proceeds equally between the spouses. Depending on the needs and desires of the respective spouses, as well as the circumstances surrounding the divorce, the matrimonial home can be dealt with in any one of the following manners:
- One spouse pays the other spouse half of the home’s fair market value at the time of divorce and gains complete ownership of the home
- Both parties continue to own the home jointly until a set event occurs
When undergoing a divorce, both spouses have an equal right to possess the marital home. Often times, one spouse is permitted to continue living in the home without purchasing the other spouse’s share of the home. This is often the case in instances where one parent is granted child custody and is permitted to remain in the home, or if there has been an abusive relationship, restraining orders are involved, and the victim wishes to remain in the matrimonial home.
If it is decided that one spouse should be permitted to remain in the home, there are essentially two options: the couple can continue owning the property jointly, or the spouse retaining possession can buy out the property interest of the other spouse. If the parties decide to maintain joint ownership of the home, they can do so until a set event occurs. Such events may include the remarriage of the custodial parent or the children reaching a certain age. During the time that the custodial parent retains possession of the home, he or she is solely responsible for paying the mortgage and taxes, and is permitted to take tax deductions for any payments of principle made for the home. Any major repairs made to the home are divided between the parties and, upon the final sale of the home, the party paying for such repairs during the duration of the joint ownership is entitled to be reimbursed for half of such expense upon the sale of the home.
Upon the execution of the previously agreed-to event, the home will be sold or purchased in its entirety by one of the spouses. If the parties decide to sell the home, the proceeds from the sale will be split evenly. If, however, one of the spouses wishes to continue retaining possession, that spouse may buy out the other spouse’s share. This buy-out may be accomplished in any of the following ways:
Paying the other spouse the fair market value of the home
- Refinancing the home
- Trading the home for other property
Sometimes, the best option is to sell the home immediately and split the proceeds of the sale. This is often the best plan financially, as it allows each spouse a flow of cash with which they can purchase a smaller home. Additionally, it allows the spouses to split quickly, especially in instances where there are no children from the marriage, and it allows the spouses to start over their lives in new homes, where there are no painful memories.
Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer