Divorce and the Matrionial Home
Dealing with divorce and having to sell your family home will be highly emotional. David and I understand, as we both have gone through all the upheaval that you may be feeling. We would like to share some options available to you regarding your matrimonial home that may help you during this difficult time.
It is important to know who is on title of the property. If both spouses/partners are on title, then both of you have to come to an agreement on:
- who will represent you to sell your home
- the list price for your home
- closing date
Since both of you have a right to stay in your home, neither of you can sublet it, rent it, sell it nor mortgage it without the other’s permission. This is true even if your lease is in only one of your names or if only one of you owns the home. Spousal consent is still required to sell the matrimonial home even if only one spouse owns the home.
It is important to have a separation agreement in place before selling your matrimonial home, as the money from the sale of your home may end up in trusts with the lawyers for an extended period of time before an agreement is reached.
Some options available to you for you are as follows:
1. Sell the matrimonial home and divide the proceeds. The proceeds will be determined by the divorce settlement, depending on the division of property laws in your area. For more information on the division of property in Ontario click here.
2. Buy out your spouse. Will you be able to continue to meet your monthly financial obligations on a single salary? Refinancing on your own might be a challenge if you used two incomes to qualify for the old loan. Seek the advice of a financial adviser to help you determine you financial obligations.
3. Have your spouse buy you out. Understand with options 2 and 3, you may have to refinance your home, as both former spouses may be liable for the mortgage. All documentation must be executed properly, including change of title. If the original home loan is not refinanced, most lenders will consider both you and your former spouse liable for the mortgage, even if legal ownership has been transferred to your former spouse.
4. Retain ownership. Some divorcing couples postpone selling the matrimonial home for a period of time, while one spouse lives in the home. The help of a financial adviser is highly recommended.
A lawyer is in the best position to advise you of your legal rights and obligations when divorcing and to help you understand the legal consequences of your decisions. A lawyer may also be able to help you resolve your issues without going to court.
David Collins and Mirjana Spehar offer professional real estate services to divorcing couples, where each former spouse is represented by their own personal REALTOR when selling their matrimonial home to remove any confidentiality or distrust issues that may arise. You receive the services of two REALTORS® for the price of one.
*While every effort has been made to ensure the accuracy of this blog, it is not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.
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