Real Estate/Homestead Divisions
By Maury D. Beaulier, Esq.
In a divorce, one of the most difficult issues is often
what happens to the house the family lives in or other real estate. There are a
number of options that must be considered when determining how real estate is to
be divided in a divorce. That does not always mean that the real estate must be
Determining Real Estate Value.
The first step in dealing with real estate issues is to
determine the value of the property. If the parties are unable to agree on the
current market value, there are several valuation methods that can be used.
Appraiser. It is often most cost effective to
agree on a real estate appraiser to have a market valuation performed. This
service will often cost approximately $300 - $400.
Realtor. A real estate valuation may also be
performed by a realtor at little to no cost. However, such valuations are
often less reliable than those performed by an appraiser since a realtor
performs an appraisal to maximize sale price and has less training than a
Real Estate Appraiser.
- Tax Assessed Value. The tax assessed value is
usually not an accurate method to value real estate. tax valuations are
generally low by as mush as ten to twenty percent. If there is a dispute in
value, the tax assessed value is likely to be given little weight in Court.
Equity is the true value of the asset of the property to
the parties. It is determined by subtracting the encumbrances against the
property from the Real Estate Value. Encumbrances may include any loans secured
against the property including mortgages, second mortgages, home equity loans or
secured lines of credit.
Under existing case law, costs associated with a sale of
the real estate are not usually deducted unless the home will
actually be sold as part of the divorce.
Determining Marital vs. Non-Marital Equity.
The second step is to determine what portion of the equity
is marital and what is non-marital. Certain assets may be excluded from the
marital estate which means that they are not divided between the parties. These
are called non-marital assets. Any non-marital assets that you possess remain
yours and any non-marital assets of your spouse remain the assets of your
spouse. In most cases, non-marital assets may include:
- Premarital. Any
asset acquired before the marriage (if the asset was encumbered by a loan
that was paid off during the marriage, it may only have a partial
- Prenuptial Exclusions.
An asset excluded by a valid prenuptial agreement;
- Personal Injury Proceeds.
Personal injury settlements are generally considered personal to
the injured party and are non-marital in nature;
- Inheritance. Any
proceeds or assets from an inheritance;
- Gifts. Any asset
acquired as a gift to one, but not both parties.
It is important to recognize that all assets are
considered part of the marital estate unless proven otherwise by a
"preponderance of the evidence." This places a significant burden on any
person making a non-marital claim. It is essential that any and all documents
including documents of title, receipts, or canceled checks that support your
non-marital claims must be provided. Any failure to provide documentation may
result in the division of the asset in the divorce.
In Minnesota the Schmitz formula is used in determining
the marital versus non-marital interests in real estate. The formula provides a
simplistic model to help determine non-marital interests in real estate. Since
real estate mortgages and other encumbrances against property are paid off over
a significant period of time, marital interests may be created in real estate
that was owned by one party before the marriage. As encumbrances are paid off
during the marriage, a marital interest is created.
The formula states that the proper calculation of a
non-marital interest may be derived by determining the ratio of equity to market
value at the time of the marriage and then using that same fraction to determine
non-marital interest at the time of divorce. For example, lets assume a spouse
owns a home prior to marriage and that home has a value of $100,000 at the time
of the marriage and that is encumbered by a mortgage of $75,000. The $25,000
equity (the difference between the value and the encumbrance) becomes the
numerator in the Schmitz formula and the value of $100,000 becomes the
denominator. As a result, the non-marital interest is 25% of the home's value.
If the home appreciates to $200,000, the spouse with the non-marital interest
may claim the first $50,000 as the non-marital interest and any remaining equity
would be divided as marital.
The limitations of this formula are obvious. First of all,
it may be very difficult to determine with any degree of accuracy the value of
real estate at the time of marriage unless an appraisal is done at that time.
That value alone may become a contested issue that results in litigation and
testimony of experts.
Second, In many instances, mortgages are refinanced after
marriage, second mortgages and home equity loans may also be incurred. These new
debts may erase or partially erase a non-marital interest.
Third, the formula does not consider the effect that
capital improvements made during the marriage have on the real estate value.
Capital improvements that are made during the marriage and which increase the
value of the real estate may erode some of the non-marital interest represented
by the Schmitz formula.
Often, presenting a persuasive property case depends on
clear cut documentation, and expert testimony. It is important to consult with a
lawyer regarding significant non-marital issues.
Dividing the Asset.
Once Marital versus non-marital interests are determined,
the parties may discuss a division of the asset.