In many divorces, the family home may be the most valuable asset. Unlike other financial assets, there is no practical way to divide a house!
 
In almost every mediation case, the choices are limited to these possibilities:

• You will keep the house.
• Your soon-to-be ex will keep the house.
• The house will be sold.

 
On the surface, it would seem simple to make one of these choices [about handling the family home], but often it is not. A number of factors can complicate the decision.
 
On the surface, it would seem simple to make one of these choices, but often it is not. A number of factors can complicate the decision.
 
Maintaining Stability for the Children
While one of you may want to sell the house, the other spouse may feel strongly about keeping the children from having to move away from where they have been living. This can become a difficult discussion if both spouses want to keep the house and live there with the children, as the other spouse may have a sense of being uprooted or otherwise being relegated to an inferior parental role.
 
Emotional Attachment
Depending on how long you have lived in your home, each of you may have made significant efforts to improve your home to fit your needs. Being asked to forego the opportunity to live in a home that you helped to create can stir up some strong emotions.
 
Financial Factors

• Can you afford to stay? As you transition from living together under one roof to maintaining separate residences, many find it challenging to keep up with the cost of the mortgage, utilities and other expenses on one income—even if supplemented by support payments being made to you by your ex. Depending on the duration of the support payments, a short-term plan that pays the bills may not be sustainable in the long term.
• Buyouts can be expensive. If you are going to keep the home, chances are that your ex will be looking to be paid their share of the equity, unless you have something else to trade (like retirement or investments). For many, the only way to get the equity to the other spouse is to borrow more money to pay off your ex’s share of the equity in the home you are keeping (and this means higher monthly payments).

 
Flexibility Factors

• Transitioning. Unless you are going to sell the house immediately, there will be a period of time where the current ownership and mortgage will remain the same.  This situation requires discussion about how long a transition is acceptable to both of you (which often means, how long is someone willing to stay on a mortgage for a home where they are not living). Transitions may be a matter of months, so some decide that they will stay on the mortgage together for a longer period of time, to help the other spouse build credit and so as not to uproot the children.  
• Planning for Contingencies. This can often be equivalent to asking “what if?” For example, perhaps you and your soon-to-be ex decide to stay on a mortgage for a period of three years, but one of you asks what would happen if that arrangement isn’t workable any longer. You can always set a minimum period of less than three years (to give time to the person who has to refinance), after which either spouse can terminate joint ownership by requesting a buy out or a sale. Similarly, there may be a plan for you to get bought out by your spouse.  You may ask, “What if they can’t refinance by the time I want to be off the mortgage?” There can always be a fallback plan to put the house on the market if refinance can’t be completed in a specified time.

​Watch for the second installment of this discussion!

On many levels, there is much to decide when you are ending your marriage. In broad terms, you need to come to agreement on the parenting arrangements for your children and on creating a financial settlement that you both find acceptable—relating to the division of assets and debts, and meeting financial needs of two households and the children into the future.
 
When it comes to parenting arrangements for your children, the plan you create now, involving parenting-time scheduling in particular, may need to shift, based on changes in your work schedules and other factors involving the children’s needs. Therefore, most parenting plans will include provisions for you to renegotiate your parenting arrangements, whether on your own or by returning to mediation, instead of getting the courts involved.
 
Similarly, in discussing the financial support of children (child support) and of a lower-earning spouse (maintenance) in mediation, a question often arises about how amounts negotiated at the time of divorce can be changed later. While the law provides some ability for financial support to be modified in court if the change of financial circumstances is “substantial,” seeking a court modification can be cumbersome and expensive.
 
The mediation process allows you to decide, on your own terms, what would be considered an agreed-upon reason for changing the amount of support being paid, and how the amount of the change will be calculated. This will save you the time, effort and cost of filing for modification in court, and provide some certainty over how this often-sensitive topic will be addressed in the future.
 
Sometimes, when the topic of division of assets and debts is being discussed, one or both of you may want to postpone a decision until later. An example of this would be what happens with a jointly owned home. I have been asked on numerous occasions about postponing a decision on the family home until some future point in time. On the surface, this strategy isn’t consistent with the concept that your divorce agreement (for asset and debt division) is intended to be a “final” settlement. For most assets and debts, it is expected that your settlement agreement will address this once and for all—meaning there is no turning back for renegotiation. As I’ve been told by many attorneys with whom I work, this is what any judge would expect when approving the agreement.
 
…. Using the example of the family home, the mediation process can offer creative options to address the need for certainty while at the same time providing time and space for a later decision through a well-defined procedure.
 
However, using the example of the family home, the mediation process can offer creative options to address the need for certainty while at the same time providing time and space for a later decision through a well-defined procedure. Here is one such approach:
 

• Spouse A and spouse B continue to jointly own the family home for a specified period of time. (Defining the deadline for ending joint ownership is critical, and in some agreements, spouse A or spouse B may be given the option to provide early notice for termination of joint ownership.)
• When the deadline for joint ownership is reached, spouse A has the option of buying out spouse B’s equity in the family home. (In some agreements, either of you may have that option, in which case it should be decided which of you has the first option.) This provision would also address the terms of the buy out.
• If neither of you wants to buy out the other’s interest in the family home, it would be sold.

 
While no decision about the ownership of the family home is made at the time of the divorce, what is described above is a complete plan for how the equity will be divided at a specific time in the future.  
 
Making creative choices that provide certainty now will allow you to move on with your life journey. Mediation can help that happen.