Who gets the house in a divorce settlement? 33 Answers as of July 12, 2013

Me and my wife are going to get a divorce. We own a house together. I want to keep it and she doesnt want anything to do with it. Do I need to re finance the house to get credit on my taxes?

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Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
There are two ways to do this: One, you take over payments, pay off the house, the other way, you refinance. Refinance is the easiest and cleanest way. She needs to give you a Special Warranty Deed, you need to give her a Deed of Trust to Secure Assumption, plus the Decree needs to provide minument of title just in case.
Answer Applies to: Texas
Replied: 6/8/2011
David Hoines Law
David Hoines Law | David Hoines
Mortgage deduction goes to who pays the mortgage.
Answer Applies to: Florida
Replied: 6/7/2011
Law Office of John C. Volz
Law Office of John C. Volz | John C. Volz
Yes, you would need to refinance the house and each of you would sign a settlement agreement confirming the house to you.
Answer Applies to: California
Replied: 6/6/2011
The Grigsby Firm
The Grigsby Firm | Sherlock Grigsby
There are a few questions to consider first. Are both names on the mortgage and deed? If both are on the mortgage the house will have to be refinanced in your name alone to remove her from the mortgage. If she is only on the deed the process is much simpler. Oer considerations include whether there is equity in the house or not.
Answer Applies to: District of Columbia
Replied: 6/3/2011
Howard W. Collins, Attorney at Law
Howard W. Collins, Attorney at Law | Howard W. Collins
Very good question. The quick answer is if you are awarded the house but the debt remains in your names jointly, a provision in the Judgment of Dissolution can be included that awards you the tax benefits of interest and property tax write offs. There is more to all of this than just your question, but I hope this answer helps.
Answer Applies to: Oregon
Replied: 6/3/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    The house represents marital property if it was bought during the course of the marriage and the money that went into it was joint funds. To "get it" you'll have to either pay her half of what its worth or refinance it to do so. It has nothing to do with your taxes. That's a different matter for whenever you sell it. Good luck.
    Answer Applies to: New York
    Replied: 6/3/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    Under Washington law, if you can't agree on who gets the house, then the court will decide. But if both of you agree that you should keep the house, then you can make that part of your settlement. If the house is going to you, your wife will likely want to refinance to take her name off of the mortgage. In terms of the tax implications, consult with a CPA, but I believe you would claims the deductions if you are the one making the payments after the divorce.
    Answer Applies to: Washington
    Replied: 6/3/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    Typically, if one person keeps the house, they need to make sure title is only in their name and if there is a mortgage that is only in their name. Typically that requires a quit claim deed and a refinancing of the current mortgage. As far as "credit on my taxes", I am not sure what you are asking.
    Answer Applies to: Connecticut
    Replied: 6/3/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    A court will decide how assets are divided if the parties are unable to reach an agreement. Where the parties own real estate, the property may be awarded to one party. However, that may require refinancing the mortgage to remove any obligation by the other party and paying out one half of any equity accrued in the property either through refinancing or an exchange of other property of like value.
    Answer Applies to: Minnesota
    Replied: 6/3/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    In Washington State, the court will make a fair and equitable division of all assets/liabilities. Refinancing the home is not a requirement but preferred.
    Answer Applies to: Washington
    Replied: 6/3/2011
    Givner & Kaye
    Givner & Kaye | Bruce Givner
    The answer to the question of who gets the house in a divorce is as follows: that is determined by the written divorce settlement agreement. I do not understand your question "Do I need to refinance the house to get credit on my taxes."
    Answer Applies to: California
    Replied: 6/3/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    If the two of you cannot agree who will get the house, the most likely result is that a judge will order it to be sold. However, there are a number of relevant factors that could support a different result. Those include whether there is any equity in the house, what other assets are there to be divided, can you qualify to refinance and get your wife off the loan? Deductions for property taxes and loan interest on your tax return do not depend on the loan arrangements l - the court rulings and actual facts of who lives in the house and actually pays those expenses control. However, in order to remove your wife from the loan and help restore her credit ratings, there will have to be a sale or a refinance and she has a legitimate argument that she should not have to remain liable on the loan.
    Answer Applies to: Colorado
    Replied: 6/3/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    It doesn't need to be refinanced for the tax credit, but your wife will likely want to be off the mortgage if you take the home. If you are in my area and are looking for an attorney, please contact me for a free consultation.
    Answer Applies to: California
    Replied: 6/3/2011
    Berner Law Group, PLLC
    Berner Law Group, PLLC | Jack Berner
    The division of assets in a divorce, especially a house, can be a tricky thing and requires precise language or you're just begging for problems after the divorce. If you reside in Western Washington, feel free to contact my office for a free, no obligation consultation-by phone or in person-about this situation.
    Answer Applies to: Washington
    Replied: 6/3/2011
    The Findling Law Firm, PLC
    The Findling Law Firm, PLC | Daniel M Findling
    When a couple dissolves their relationship, the division of property can be one of the most important and complicated issues. The division of property will include both assets, (such as real estate, personal belongings, automobiles, stocks, bank accounts, pensions), as well as debts. In addition to the general rules of property division, a competent lawyer will also take into considerations the tax consequences and present/future value of an asset or liability to benefit his/her client. What property is divided? Courts distinguish between marital property and separate property.
    * Separate property is typically property acquired before the parties married.
    * Marital property is typically property acquired during the marriage. Michigan has adopted a doctrine called the doctrine of non-invasion of separate property. As a general rule, separate property (before marriage) is awarded to the party who owned the property prior to marriage, unless the other party substantially contributed to its acquisition or appreciation or the estate is otherwise insufficient. (For example, if you purchased your home before marriage, the increase in value of the property during the marriage will often be considered marital.) Defining specific property as marital, separate or both can have a significant impact on a property award. Michigan law provides many exceptions to these general rules. How is the property divided? Michigan law promotes an equitable distribution of property. There is no requirement that property awarded to each party be equal, but at a minimum should be fair. In determining the distribution of property, the courts take the following into consideration: * The source of the property;
    * Who contributed toward the acquisition of the property;
    * The length of the marriage;
    * The needs of the children, if any;
    * The earning powers of the parties;
    * Who is "at-fault" or "caused" the Divorce. Thank you for the opportunity to assist you in this matter. If you require further assistance or would like to schedule a free confidential consultation, I have provided my contact information below. During the consultation we can discuss both the obligations and benefits associated with your case. I look forward to meeting you to discuss your goals.
    Answer Applies to: Michigan
    Replied: 6/3/2011
    The Law Office of David J. Reed, LLC
    The Law Office of David J. Reed, LLC | David J. Reed
    This can depend on a variety of things. Marital property are those items acquired during the marriage and if the house was purchased during the marriage it is such. If the parties agree on a division of the property, then the matter can be settled; however, the value of the property is what is important in determining the final divorce decree - as the parties usually are entitled to their equitable share of all of the value of the marital property.
    Answer Applies to: Nebraska
    Replied: 6/3/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    I recommend that you retain a divorce attorney in your community to advise you as to all your rights and options, including discussing the reasons for possibly refinancing, as well as other alternatives, if that isn't feasible. Good luck!
    Answer Applies to: Georgia
    Replied: 6/3/2011
    Arnold & Wadsworth
    Arnold & Wadsworth | Brian Arnold
    You need to make sure that she agrees to give you the house, including any equity that is or will be in the house in writing before you refi. Make sure that if you do refi that it is only in your name, and I would wait until the divorce is final to get it done.
    Answer Applies to: Utah
    Replied: 6/2/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    The court will divide your assets and debts. So if you get the house, you get the debt. So you will then be able to claim the mortgage on the taxes. However, if your wife is smart she will insist that you refinance and the court will probably order that so she is not liable for the debt on the house if you default. Consider using the collaborative method to resolve your case.
    Answer Applies to: Washington
    Replied: 6/2/2011
    Michael Anthony Wing, P.C.
    Michael Anthony Wing, P.C. | Michael Anthony Wing
    Yes, most certainly, if you can do it by agreement, then do it. Refinance. Get her to deed her interest to you, so she has no liability, and you have sole ownership. Stay well.
    Answer Applies to: Alabama
    Replied: 6/2/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    Net community property is divided 50/50 in a divorce. If the house has equity in it, you need to purchase your wife's 1/2 of that equity from her through an equalization payment, unless there are other assets that can be awarded to your wife to balance the equity that you will be receiving in the house. To fund an equalization payment, a party may refinance the house or obtain a loan secured by 2nd Trust Deed or a HELOC. I cannot understand your question: "Do I need to refinance the house to get credit on my taxes?" The refinance I addressed above was to fund a buyout of your wife's share of the equity in the house. If you buy your wife's share of the home equity, there won't be any tax due -your wife would provide you an Interspousal Transfer Deed and the county assessor won't reassess the house, and there is no income tax due on an interspousal buyout.
    Answer Applies to: California
    Replied: 6/2/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    You will likely need to refinance the house to have it as one of your assets of the divorce assuming it was purchased during the term of the marriage. Please consult with your divorce attorney on distribution of marital assets.
    Answer Applies to: Ohio
    Replied: 6/2/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    You really need a divorce attorney to take a look at your situation and give you some advice. Refinance? No, you do not need to do that to get credit on your taxes. You might need to do it to be able to get her convince her to give her ownership of the house to you. Give me a call, make an appointment to come see me, and let's get moving on this for you. No charge for the first office visit. I know people worry about how expensive a lawyer is, so I am careful to be as inexpensive as I can for my clients. Before you spend a dime, you will know how much this is likely to be.
    Answer Applies to: New Jersey
    Replied: 6/2/2011
    Fox Law Firm LLC
    Fox Law Firm LLC | Tina Fox
    Who gets the house depends on what you guys can agree upon. You may have to buy her out. You can call the office for a free phone consultation to discuss the matter in more detail.
    Answer Applies to: Illinois
    Replied: 6/2/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    First of all, do NOT, and I stress do NOT, even think of divorce unless you get a lawyer. Your divorce settlement will likely be completely messed up without a lawyer. As a general rule property can be divided by proper agreement and court order. Refinancing may or may not be appropriate depending on the situation, but taxes usually are not the reason for it.
    Answer Applies to: Georgia
    Replied: 6/2/2011
    Charles Regan Shaw, PLC
    Charles Regan Shaw, PLC | Charles R Shaw
    You decide in your settlement.
    Answer Applies to: Michigan
    Replied: 6/2/2011
    Law Office of Steve Cedillos
    Law Office of Steve Cedillos | Steve Cedillos
    What state are you in?
    Answer Applies to: Hawaii
    Replied: 7/12/2013
    Diana K. Zilko, Attorney at Law
    Diana K. Zilko, Attorney at Law | Diana K. Zilko
    Generally the one spouse who wants to keep the house will accomplish a refinance in order to remove the other spouse from the loan and title. Otherwise, the spouse who leaves will still be on the hook for the loan. If you have any further questions, please let me know.
    Answer Applies to: California
    Replied: 6/2/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    I think you answered your own question regarding division of the house. I.e., if wife doesn't want any part of it, and you do, then you both can agree to such terms. I.e., she can quitclaim the house to you. You can draft such settlement terms in a "marital settlement agreement," and then file such agreement with the court as part of finalizing your divorce. Your last question about taxes is a bit vague. When you say "credit on your taxes," do you mean deducting mortgage interest and any other allowable home expenses on your taxes? If so, that has nothing to do with who is on the promissory note with the lender. I.e., if you are the one actually paying the mortgage interest, rather than your wife, even if she is still on the loan, and you have proof that you paid a certain amount in any given year, then you can deduct such interest (and other allowable expenses) paid, up to the allowable amount via the tax code. If you have further questions about taxes, start with talking to an accountant, as they are typically cheaper than a lawyer, and often times are more informed than some lawyers. Good luck.
    Answer Applies to: California
    Replied: 6/2/2011
    Van Der Jagt Law Firm
    Van Der Jagt Law Firm | Grant Van Der Jagt
    It depends on what type of credit you are seeking. If you claim it as your primary residence and exclude capital gains from taxes upon its sale, no, you don't have to refinance it. If you characterize the interest on the house as an expense to offset your real estate income, you may need to refinance it. It depends on many factors and your general tax strategy.
    Answer Applies to: Colorado
    Replied: 6/2/2011
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