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Transferring Real Estate in a Divorce

Billy Joel told us that Brenda and Eddie “were the popular steadies and the king and the queen of the prom”. But as the song goes, “[t]hey got a divorce as a matter of course, and they parted the closest of friends.”

How should parties divide jointly owned real estate, especially jointly owned real estate encumbered by a mortgage (usually in both names), in a divorce?

One important consideration is that the party who keeps the home, should be required to make efforts to refinance or assume the existing mortgage, so as to release the other of liability on the mortgage debt.

The timeline for this requirement will vary depending on the circumstances. Dividing real estate in a divorce is just one part of the ‘mosaic’ of a property settlement. For example the party keeping the home, might be given several years to re-finance, so as to give the children stability until they reach a certain age.

What if the party who keeps the home doesn’t refinance within the time permitted (i.e. according to the agreement / judgment)?

The party who was obligated to refinance the home, may be subject to 1) a finding of contempt of court (resulting in sanctions), or 2) the court might order that the home be sold.

However, in Connecticut, the statute that governs “assignment of property” states:

At the time of entering a decree annulling or dissolving a marriage… the Superior Court may assign to either spouse all or any part of the estate of the other spouse. …” (See C.G.S. 46b-81(a)) (Emphasis added.)

This means a Court may not order the home be sold before, or after, the divorce judgment, but only at the time of the divorce judgment. Therefore, some circumstances may justify asking the Court, at the time of entering judgment, to “reserve jurisdiction” over disposition of the home, after the judgment. Many things can be done by agreement of the divorcing parties, that the law otherwise doesn’t allow for.

Speak with an experienced attorney about this issue. Despite Brenda and Eddie “departing the closest of friends”, neither wants to be tied up on a mortgage, for the next thirty years.

Joel A. DeFelice is a partner at Marder & DeFelice Law Offices, LLC, located in Vernon, Connecticut.