Picture this: You have spent years turning your Fayetteville house into a home. You have painted the walls, landscaped the backyard, and shared countless family dinners around the kitchen table. Suddenly, your marriage is coming to an end, and the thought of walking away from the very place where you have built your life feels entirely overwhelming. Amid the emotional turmoil and uncertainty of a divorce, one pressing question often takes center stage and adds to the stress: What happens to the property?
Is the Home Considered Marital or Separate Property?
In a Fayetteville, Arkansas, divorce, the most critical factor in determining who gets the house is its legal classification:
- Marital Property: Property acquired by either spouse after the marriage date is typically marital property. The court usually splits the value of these assets equally.
- Separate Property: If you or your spouse purchased the house before the marriage, or inherited it individually, it remains separate property and is generally not divided.
However, separate property can become complicated if both spouses contributed to it. If the home’s worth goes up, the increase in value during the marriage as a result of the time, effort, or skill of a spouse can be legally treated as marital property and subject to division.
How Is the Value of the Marital Home Divided?
When the home is considered marital property, you and your spouse have a few options for dividing its value:
- Selling the Property: The most straightforward approach is to sell the house and divide the net proceeds equally between both parties.
- One Spouse Buys Out the Other: One spouse can keep the house by refinancing the mortgage and paying the other spouse for their half of the available equity.
- Deferred Sale: In some situations, couples choose to continue co-owning the home for a specific period, such as until their children graduate from high school, before eventually selling the property.
Can a Prenuptial Agreement Alter the Division?
Yes, a valid prenuptial or postnuptial agreement can completely change how a primary residence is divided. If you and your spouse signed a legally binding contract detailing property division, the court will typically enforce those terms.
Requirements for a Valid Agreement
For a prenuptial agreement to hold up in court, it must meet specific criteria:
- It must be in writing and signed by both parties.
- Both spouses must have fully disclosed their financial assets and debts before signing.
- The agreement must have been signed voluntarily, without coercion or duress.
What Happens to the Mortgage Debt?
When deciding who gets the house, the associated mortgage debt must also be addressed. Arkansas courts divide marital debts similarly to marital assets:
- Refinancing: If one spouse stays in the home, they usually must refinance the loan into their sole name, which removes the other spouse from financial liability.
- Joint Liability: Until the mortgage is refinanced or the house is sold, both parties remain legally responsible for the debt, even if the divorce decree assigns payment to one person.
- Impact on Credit: If the spouse responsible for the mortgage misses a payment, it can negatively impact both parties’ credit scores until the loan is fully resolved.
What Factors Can Alter an Equal Split?
While Arkansas courts aim for an equal distribution of marital assets, judges can alter this if an exact 50/50 split is deemed unfair. To determine a different property distribution, the court may look at the following factors:
- The length of the marriage.
- Each spouse’s current occupation, vocational skills, and overall employability.
- The contribution of each party to acquiring, preserving, or appreciating the marital property throughout the marriage.
Contact an Experienced Fayetteville Divorce Lawyer at Wilmoth Law Firm for Help With Your Property Division When Going Through the Divorce Process
Property division can become complex, especially when a primary residence is involved. Fayetteville divorce lawyer at Wilmoth Law Firm will navigate the legal system for you, so you can claim what you deserve after your separation. For a free consultation, call today at 479-443-8080 or contact us online. Located in Fayetteville, Arkansas, we gladly serve clients in the surrounding areas.