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A house divided is a legal issue

Determining real estate distribution in a divorce may be particularly contentious and can have long-term consequences. Minnesota court forms only allow for one spouse to obtain 100 percent of the couple's real estate, such as their home or vacation cabin. The other spouse may have a lien on the real estate.

However, state law also requires that each spouse is entitled to a fair and equitable share of the couple's marital assets. Therefore, spouses can add or change language to the court form to allow a spouse to receive a share of any real estate that is a marital asset.

For example, a house is a marital asset if the couple purchased the house after they were married and paid the mortgage from their earnings. Distribution of the house to only one spouse is unfair and unequitable, unless the other spouse receives other compensation, such as the creation of a lien on the house or the awarding of other assets, such as savings accounts.

A couple planning to equally divide the sale proceeds at the end of a marriage may have to resolve several issues. These include whether the remaining balance of the mortgage is more than the house's appraisal, who can live in the house when it is on the market, whether the spouses stay in the house as joint tenants or tenants in common and which spouse will pay for mortgage, insurance, taxes and repairs until the sale is completed.

Spouses may have to address how to resolve a dispute over the sale, such as the sale price or whether an offer should be accepted. Couples will have to determine whether the expenses are paid before the sale proceeds are divided and how the house is awarded if it is sold before the entry of the divorce decree.

Other issues apply to real estate that was purchased by one spouse before the marriage, which may be a non-marital asset that does not have to be distributed equally. Any mortgage, down payments, improvements and appreciation before the marriage is a non-martial asset. However, any appreciation, payments or improvements made after the marriage may be a martial asset sought by a spouse.

Source: Minnesota Judicial Branch, "Common questions about real estate in divorce," Accessed Feb. 15, 2016

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