After a separation, awkward situations often arise regarding assets. This article will outline the steps for selling half of a house after a divorce.
separation of property
By formalizing our relationship, steps are being taken to consolidate a stable de facto union. This implies, having the certainty of acquiring commitments with equal participation in the fulfillment of material and financial obligations.
In a couple relationship, subjectivity plays a fundamental role. Thinking that in the long term family life can go through difficult times to overcome, can result in an offense with the couple.
The subject of a prenuptial agreement and the separation of assets has become a real taboo. Generally, the inexperience and passions in young loves tend to consider these legal aspects as previous and perverse sentences to the profession of love.
Prenuptial agreements or contracts or marriage contracts are a written agreement, made by two individuals before a competent authority before getting married. In it, the conditions of the management and destination of the patrimony of each one of the spouses are established during and after their life as a legally established couple.
In it, all the material and financial properties are established (from houses and businesses to bank accounts and debts) that will remain as individual property and those that will become part of the conjugal community. Generally, in this last aspect, those properties that are acquired in equal parts during the de facto stable union enter.
The importance of these agreements lies in the prevalence of reality over forms. These do not imply that the use, enjoyment and enjoyment of a property gives the full right to ownership of the property by one of the spouses if it is part of the prenuptial agreement.
In this sense, the separation of property regime established in Title III, Chapter VI of the Civil Code, represents one of the most expeditious ways to avoid having to review the steps to sell half of a house after divorce.
Marriage and its economic regime
In accordance with Chapter I of Title III of the Civil Code, the matrimonial economic regime will be the one stipulated in the marriage agreements. In the absence of this, the economic regime will be that of the community property.
In the absence of the separation of property regime, the matrimonial economic regime provides for the participation of each of the spouses in 50% of the profits and benefits obtained indistinctly from the members of the conjugal partnership.
Likewise, we can include in this economic regime, the one established in article 1411 of said code. The participation regime is one where each of the spouses has the right to participate in the profits obtained by the other during the term of the conjugal partnership.
The marriage relationship from the legal point of view and according to what is embodied in the Civil Code, have great simplicity and are oriented to equity and justice in terms of its administration. It is the sentimental element, which makes it difficult to understand and accept what is legally established.
Complications arise at the time of exercising the right over the community property once the legal bond of the stable de facto union has expired.
If you're going through a divorce, we recommend reading our article "What the Bible Says About Divorce ." There you'll find valuable information that may be helpful before you take the final step.
What are the steps to sell half of a house after divorce?
Not everything is so simple
If, before exercising the legal right to marry, prerequisites are established, such as passing a course on the economic regime of marriage and its implications, many would be the problems that the spouses would save by dissolving their marital partnership.
Spain occupies the 5th place of the countries with the highest number of divorces in the European continent with more than 100.000 breakups per year. Consequently, it potentially has 100.000 cases of marital property liquidation.
The steps to sell half of a house after a divorce are not as simple as they sound. In addition to the absence of a prenuptial agreement, other factors must be considered.
The distribution of personal property is usually a simple task; Generally, all of these are distributed among the parties based on their market value, in such a way that both receive equal amounts. However, with real estate this is different.
In the conjugal community, real estate generally corresponds to the house, flat or structure where the domicile of the conjugal dwelling is established. In these cases, the spouses are co-owners or co-owners of the same, that is, they are owners in equal parts, coupled with the fact that these properties cannot be defined exactly.
The situation is complicated when we add other elements to the formula. When couples have children together, it is one of the most recurrent cases in conflicts to sell half of a house after divorce.
When the divorce materializes
Ending a romantic relationship always generates some kind of sequel on a personal level. However, these are ultimately less significant than the marital separation of jointly owned real estate.
The conjugal obligation of marriage is extinguished once the final judgment is issued by a judge. From that moment, there is no obligation with whoever was your spouse; however, it may be the beginning of another series of conflicts of economic interest by wanting to take their respective part in the common thing.
When real estate exists, both parties must decide the fate that awaits it. If the divorce has materialized within a traumatic emotional process, the struggle of economic interests may become very conflictive.
What scenarios frequently occur with the property in common?
As noted above, there are practically two scenarios faced by real estate that at some point served as the domicile of the marital partnership. One, if it is a private asset declared in the regime of separation of assets; and two, if it belongs to the joint ownership company.
In the first case, the property will continue to belong exclusively to the party that declared it in the prenuptial agreement. In this sense, it does not spare conflicts for the property and adjudication of the same.
The second is where problems usually arise; if it belongs to the joint ownership company, it must be paid in equal parts. The conflict arises when the parties are in some disagreement, however small it may be.
The most common disagreements
The use and enjoyment of the property
When the disputed property is the residential address of the parties, there may be disagreement as to who should remain in the property. If the parties lack another possible domicile, both will want to fight to make their right prevail and therefore the usufruct of the property.
One of the parties does not want to sell or buy the property
In many cases, before separating couples know the processes that come in the event of a divorce. One of them is knowing that each one owns 50% of the value of the property, so it would only be enough to compensate the opponent for that value to proceed with the total adjudication of the same.
However, it happens that one of the two refuses to sell his part for the reasons that he considers convenient to his interests. This causes the lengthening of the problem by having to resort to an exhausting judicial process with a view to making the right of both prevail.
The assessment of the parties
Another of the recurring conflicts is that despite reaching an agreement to buy or sell the parties to the opponent, an agreement is not usually reached regarding the real value of the property due to the subjective perceptions of the disputers.
This disagreement, apart from generating discussions, may result in the obligation to appraise the property through other special procedures to authenticate its true value, creating delays in the definitive separation process.
When there are children in common
One of the situations that also generates strong conflicts is when there are children in common. Due to this, the property is usually occupied by the person who has custody of the children and the counterparty does not yield in the sale of its corresponding share.
In these cases, likewise, long-standing judicial processes must be resorted to in order to guarantee the liquidation of the asset in equal parts to its joint ownership.
Whatever the cause of the disagreement, both parties must be clear that the property they live in once the marriage is dissolved also belongs to the other half, if it does not belong to the separation of property regime.
The need to dissolve the joint ownership of the property
There is no obligation to remain jointly with the other once the marriage is dissolved. The Civil Code in its article 400, establishes that each co-owner can request the division of the common thing at any time.
In this sense, the need to dissolve the joint ownership or the condominium arises from the particular right to property and, therefore, from its use and enjoyment, as well as the disposition on your part once you want to get rid of it.
It would be simple, in theory, for the parties to agree on who awarded it and the value of the respective compensation, adjusted to the real market value at the time of making the transfer operation of the corresponding 50%.
However, if both parties have the need to get rid of the common thing or do not reach an agreement as to who will be awarded the property, they can resort to the sale of the property to a third party, distributing the amount of the sale in equal parts. , as established in article 404 of the Civil Code.
These are the two easiest and most expeditious ways to extinguish the ownership of the property. Tacitly, it implies the obligation to reach an agreement between the parties that, regardless of the circumstances, guarantees the right to 50% of the value of the property.
Children in common and the dissolution of the proindiviso
The situation where there are children in common usually generate urban myths. The fact that by divorce decree the use and enjoyment of the property is attributed to the person who has custody of the children, does not give ownership of the property.
Firmly, the courts have made clear the compatibility of the use and enjoyment of the property to the person who has custody of the children, without leaving the obligation to recognize the other co-owner his right to half of the property or to end co-ownership.
In this sense, there are jurisprudential pronouncements that guarantee the action of division or liquidation of the property if requested by the co-owner, guaranteeing the due subsistence of that right.
Steps to sell half of a house after divorce
As you may have noticed, selling the property seems to be the best option for the benefit of the parties. Like any divorce, this is a legal process that takes time; therefore, if it is by mutual agreement and definitive, it is best to dispose of the assets before the judgment and cancel the mortgage if it exists on the property.
However, as is often the case, divorces are traumatic and require maturity and sound judgment from both parties. If no agreement has been reached regarding the property at the time of the divorce decree, we recommend following these steps to sell your half of a house after the divorce.
avoid arguments
The first step that you should take into consideration and that you may have to resort to frequently is: avoid arguments or fall into provocations.
Not only will they steal your peace of mind, but they can also exacerbate the intransigence of the counterpart. If she does not agree with the processes to be followed to extinguish the condominium, she will be tempted to generate provocations to achieve her goal.
Consequently, avoiding discussing and engaging in provocations will make the negotiation process more bearable. Remember that, at the end of everything, you own 50% of the property and this right is legally guaranteed.
The discussions will not increase the participation fees as a joint ownership of the property. Likewise, these will not reduce the exercise of your right to dispose of it.
Pay attention to mortgages and liens on the property
This is one of the steps in selling half a house after a divorce that's often left until the last minute. It's crucial to pay close attention to the status of mortgages and liens on the property when selling it.
If possible, attempts should be made to pay off mortgages before final separation. Otherwise, it is suggested that the parties seek advice from the mortgage company about the status of the debt on the property.
Being clear on this point will guarantee that the obligations contracted during the conjugal partnership are assumed equally. Similarly, local property taxes should be addressed.
Carry out an appraisal of the property
Before imagining a market value for the property in dispute, consult with experts in the real estate area. You can carry out a certified valuation by a specialist or real estate expert, who will make it clear to you the real monkey of the property.
With this, in the event of a disagreement with the other party, you will have certified information at hand that you can promote in the statement of claim, if applicable.
Find a balance point. be objective
It is necessary that you establish a balance point in terms of the value that you assign to your parent when negotiating. As you know, the counterpart will have a subjective assessment; however, this should not be far from reality.
In this sense, it establishes the possibility of negotiating your part up to a certain limit. It takes into consideration elements that only those who inhabited the property know; for example: possible damage to infrastructure, need to replace pipes, wiring, among others.
try to come to an agreement
Try to reach an agreement with the counterparty to sell your participation fee as a joint venture in the property. If this is possible, it is only necessary to go to the notary with a document of extinction of the condominium. With this, the change of ownership can be formalized without the need to resort to judicial proceedings.
Another agreement that you can reach with the other co-owner is to resort to the sale of the property to a third party. If this is the case, you will have conquered the maximum of legal lawsuits for the benefit of justice and equity.
If you are still unsure or considering separating from your partner, we recommend reading our article " Prayer to Restore My Marriage ," where you will find excellent spiritual help for your problems.