Recently my spouse and I decided to separate. We have combined finances, which we are sorting through, but the one asset we are having difficulty deciding what to do with is the matrimonial home. My husband would like to sell the property and split the proceeds. I like the house and would be interested in buying him out. Where do we start?
Your situation is frequently seen in my practice. I think the starting point is for you and your spouse to make sure you are getting good advice. This usually takes the form of a family law lawyer who is focused and familiar with marital breakup. This does not mean you need to hire an aggressive advocate to browbeat and intimidate your spouse. It simply means you are making an informed decision with respect to both your rights and obligations when your marriage is coming to an end.
If a client comes to me to deal with the disposition or transfer of the matrimonial home, I will inquire if they have entered into a separation agreement. This is a formal document that sets out the division of property as well as other matters such as financial support and child custody.
It is extremely important that both parties have received good advice and are moving forward on a level playing field. It doesn’t make any sense for you to get a lawyer’s advice and then enter into a lopsided agreement because your spouse refuses to engage a lawyer. Generally, I will request a written agreement that has been properly drafted between lawyers so I am guided in the transfer of the property. If there isn’t such an agreement, I will require a signed acknowledgement by both parties that they are entering into the transaction of their own free will and both agree to have me represent their interests without providing them with any family law advice.
Please be careful when dividing assets and just a importantly, respectful of the person you chose to marry.