Homes, even those you don’t live in full time, hold financial and emotional value. However, they can also present liabilities in a divorce if you are not careful. If you are divorcing in Alabama and own another residence apart from your primary one, such as a lake house, beach condo, or game day condo, pay attention to the following considerations when deciding what to do with the second home in your divorce.
Legal
First and foremost, it’s important to clarify who owns your second home. Specifically, you will need to clarify who legally owns the property and what rights you and your spouse have in deciding its future. Is it separate property, i.e., did one of you own it independently before entering the marriage, or was it jointly purchased during the marriage? If it was separate property, did the non-owner spouse contribute money to its upkeep or make or pay money toward any capital improvements?
There are also legal implications brought about by a divorce. Alabama is an equitable distribution state. This means an Alabama court will determine how to split assets and debts in a way that is both fair and equitable. That may not mean equal.
Finally, if you and your spouse signed a prenuptial agreement or a postnuptial agreement outlining how specific assets would be divided in the event you decided to dissolve the marriage, your Alabama family law attorney would need to evaluate that agreement to see how it might impact the disposition of the home or homes in question.
Financial
In an Alabama divorce, the value of one asset can be used to offset the value of another during asset and debt distribution. For example, if you or your spouse wanted to keep the second house in the divorce, keeping that share of the equity in the house could mean you would receive less interest in another asset, such as the primary residence, a car, or an investment account.
Given a second house’s potential role in asset distribution, it will become necessary to determine the current market value of the second home and how much equity is in it. This calculation will be based on a professional real estate appraisal and review of the balances of any mortgages that exist on the property.
Market conditions will also come into play, specifically whether selling the property would be feasible given the current real estate market and what price a sale might bring. This information will become particularly relevant if one of you is thinking about keeping the property and determining how you might go about buying out your spouse’s interest.
If you are the spouse interested in buying out your spouse’s interest in the second home, you will need to consider not just the selling price but also whether you can take over making future mortgage payments and paying property taxes, insurance, and other maintenance costs, including those that arise unexpectedly.
Planning
The above section alludes to the importance of engaging in future financial planning before making any decisions regarding the disposition of a second home in your divorce. That entails assessing both your short-term and long-term goals.
Consider, for example, how a decision to keep a second home might fit into your long-term financial and housing plans. Will you live in the house? Will you rent it out to offset the expenses on the home, possibly including any excess rental income in your budget? Would the money you are spending to keep the house be better utilized by being invested or earmarked for retirement?
When answering these questions, it’s best to examine your entire portfolio. Then, determine how keeping the house might impact your financial stability today and in the months and years to come.
Emotions
Personal preference about whether to keep your second home in your divorce can also influence your decision, though it’s important not to allow your emotions to drive that decision. To that end, evaluate your emotional attachment to the property as objectively as you can and whether it will still be one of your priorities to keep it.
If you have children, you can consider their attachment to the home as well and how selling it versus keeping it would affect them emotionally. Again, it’s up to you to be objective in your decision-making, as emotionally fraught as that may be.
Practicality
When deciding whether to pursue the second house in your divorce, evaluate the practicality of keeping it based on its location relative to where you will be living and working and the limits of your projected lifestyle once your divorce becomes final. Ask yourself: Will I use it? There’s nothing worse than paying for something you are not using or whose detriments (constant headaches due to upkeep, for example) outweigh its benefits.
Taxes
Divorce comes with many tax implications, capital gains being one of them. If you aren’t aware of the timing issues, it can cost you. It’s also important to understand the tax deductions you may be entitled to by owning property so you can include them in your budget.
In addition to consulting with your Alabama family lawyer when deciding what to do with the second home in your divorce, you should also consult a tax professional familiar with issues that come up during a divorce. If you don’t have someone to consult, your family law attorney should be able to refer you to someone they hold in high regard.
Speak with an Alabama family law attorney about what to do with your second home in your divorce.
As the above discussion reveals, homes, including those not used as the primary residence, hold value in more ways than one. When deciding how to dispose of a second home as part of a divorce, an Alabama divorce attorney experienced in property division can help you navigate these complex decisions to arrive at a fair and equitable settlement.
At Summit Family Law, our legal team recognizes how every couple’s circumstances are unique and is here to listen to the specifics of your case to help you in any way we can. We work closely with divorce financial professionals to give you the most comprehensive tax advice and have offices conveniently located in Huntsville and Birmingham to serve you. Contact us today to set up a consultation.
