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Marital Residence

What happens to the primary marital residence in a Connecticut Divorce?

The marital residence, vacation homes, and other real estate that spouses own are likely some of their most valuable possessions. These properties will usually also hold sentimental value as irreplaceable memories may have been created there. But when couples go through a divorce, these assets can be subject to division. They can create a sticking point that is the catalyst for prolonged and protracted litigation. Understanding how Connecticut law treats real estate upon divorce is key to tempering expectations to come up with a fair and favorable divorce settlement.

 

Paralegal-Jessica Calise, Partner-Alexander Cuda; Attorney-Mark Randall, Paralegal – Tai Frazier;

Connecticut Divorce Lawyers guide high-net-worth clients through complex real property division

Needle|Cuda’s divorce lawyers have extensive experience handling matters involving multiple properties, including the marital residence. We are experts in divorce law, and we use this knowledge to craft a legal strategy that will facilitate a positive outcome for our clients. For professional, steady representation, reach out to a Needle|Cuda divorce lawyer by calling (203) 557-9500 or by contacting us online.

 

 

 

Connecticut is an “Equitable Distribution” state when it comes to the division and distribution of marital residence. The law gives Connecticut judges significant discretion in dividing the marital estate in a way that is fair and equitable. This means that a divorce settlement ordered by a judge will not necessarily be a 50/50 split but instead will be crafted in a way that is fair to both spouses based on several factors the judge will consider. Some of those factors are:

Length of the marriage— It is not uncommon for marriages that last for decades to result in increased financial interdependence. A spouse that did not work but instead chose to raise the children and tend to the domestic responsibilities may be awarded a larger share of marital property to provide them with the resources necessary to move forward without their spouse.

• What caused the divorce —Connecticut is a “no-fault” divorce state. What this means is that spouses do not need to claim to prove fault to get a divorce. Still, the reasons the marriage failed can be a factor the judge may consider in determining what is equitable.

• The spouses earning capacity, employability, and position — In determining what is equitable, the court can look at the spouses’ ability to enter the workforce and their respective employment histories. The court can also look at the lifestyle the couple enjoyed during the marriage to evaluate if they can maintain that manner of living after the divorce.

Each spouse’s role in the accumulation, preservation, and appreciation of the assets — What a spouse brought to the marriage will be considered when dividing marital property. This will not only include financial contributions but can only also incorporate non-monetary contributions of a stay-at-home spouse.

When looking at those factors, it is important to understand how Connecticut looks at all property. It may not matter when it was acquired and whose name it is in as marital property. This means that all property the spouses own is assumed to be marital property unless one spouse can prove that it should be treated separately. Connecticut is one of the few states in the country that takes this position, and as a result, real estate that a spouse has title to could be divided upon divorce. Similarly, real property that was acquired before the marriage could also be subject to equitable distribution at the end of a marriage.

The Marital Residence

For many couples, there will be one single property in which they primarily reside. This is known as the marital residence. When couples get divorced, many questions can arise about what will happen to the marital home. If children are involved, additional issues can present themselves. For example, this could create the potential for uprooting them from the area they grew up in if the spouses can’t reach an out-of-court agreement. It is important to recognize that Connecticut treats the marital home like any other form of property, thereby making it divisible upon divorce.

Attorney Melissa Needle, Managing Partner of Needle|Cuda: Divorce and Family Law

There are several options on how the equity in a property can be allocated amongst the spouses. For instance, if one spouse is interested in remaining in the marital home, they can offer to buy out the other spouse’s legal interest in the property. This agreement will need to be approved by the court, but if both spouses are on board with that arrangement, it will likely be granted. Another option is to sell the property, and each spouse will receive a portion of the proceeds minus any liabilities attached to the party. However, the sale of the marital home can be tricky as the spouses will need to agree on a purchase price.

Lastly, each spouse can retain their interest in the marital home under a joint ownership agreement. Joint ownership means exactly what it says- the spouses together will own the property. In most cases, neither spouse can unilaterally sell the property without the consent of the other. Joint ownership after divorce is uncommon as many couples do not want to continue to be tied financially to each other once the marriage has ended.

Who gets the Marital Residence?

For many couples, who gets the marital residence is a question of great importance. With the marriage coming to a close, both spouses cannot remain within those walls. While many couples can agree on what will happen to the marital home, it is commonly an extremely contentious issue that may ultimately result in litigation. Connecticut divorce law gives judges considerable power to fashion a divorce decree, and, in some circumstances, they can even force the sale of the marital residence. Understanding the divorce process and how property is treated during a divorce can help spouses considering divorce gauge their options and adjust their expectations.

Equitable Division And The Marital Residence In Connecticut Divorces

To answer the question of who will get the house in a divorce, you must first understand how Connecticut treats marital property. In Connecticut, all property is marital property. Put differently, everything that the couple owns- no matter when it was acquired or whose name it is in will be presumed to be marital property. Still, a spouse may be able to certainly get property excluded from the marital estate if the divorce judge agrees.

Connecticut Is An “All Property” State

Because all property is considered marital property, the marital residence may be divided and distributed upon divorce. While this does not always happen, the court does have the power to require the marital home to be sold if that is determined to be the most equitable outcome.

Distribution Of The Marital Home By Agreement

In many cases, spouses can amicably decide who will remain in the marital residence. There are a variety of legal methods that the spouses’ lawyers can craft, by agreement, that will resolve this issue. Sitting down with an experienced family lawyer and laying out all the options is recommended before entering into any divorce settlement or agreement. Some of the options on how to effectuate the distribution of the marital home are:

Buy out – If one spouse is adamant about remaining in the home, a common method that can be used to accomplish this is a buyout. This works when one spouse pays the other spouse a portion of the equity in the property. Once it is paid, the title of the property will be transferred over solely to the one spouse. The other spouse will no longer have any ownership rights in the property.

Joint Ownership – While less common, parties can agree to enter or remain in a joint ownership arrangement. This option is not for every couple, as owning property as significant with an ex could create problems down the road. Joint ownership requires both spouses to be responsible for the mortgage and taxes connected to the property. As a result, joint ownership is likely an option only for couples that cannot afford a buyout and are on amicable terms.

Selling The Home – Situations arise where it is necessary to put the marital home on the market. This usually happens when the parties cannot agree on who will get the house. It may also occur when the current liabilities associated with the home make it financially unfeasible for either spouse to own it outright. The proceeds from the sale of the property could be used to pay off existing liabilities or can be divided amongst the parties if there was equity in the home. It is important to note that selling the marital residence may trigger tax implications for both spouses.

Litigating Who Gets To Keep The House

In situations where one spouse wants to remain in the house, and there is no agreement, then the matter will need to be litigated. Before a decision is made to go to court, spouses must understand that the decision will now rest with the judge. While agreements can be made before the conclusion of the hearing, if no deal can be reached, the couple will have to live with the court’s decision on who gets the house. If either spouse does not like the court’s decision, they may be able to appeal to a higher court. However, this process is highly complex and doesn’t guarantee success.

Statutory Factors The Connecticut Family Court Considers When Deciding Who Gets The Marital Residence

The court’s overarching goal in dissolving a marriage and distributing property, including the marital residence, is equity. In other words, Connecticut law dictates that the marital estate is not to be distributed based on a 50/50 standard but instead equitably and fairly. In determining what the fairest way to distribute marital assets is, the court is guided by several factors contained within the Connecticut divorce law.

Some of those factors are:

• The spouses earning capacity, employability, and position — In determining what is equitable, the court can look at the spouses’ ability to enter the workforce and their respective employment histories. The court can also look at the lifestyle the couple enjoyed during the marriage to evaluate if they can maintain that manner of living after the divorce.

What caused the divorce? —Connecticut is a “no-fault” divorce state. What this means is that spouses do not need to claim to prove fault to get a divorce. Still, the reasons the marriage failed can be a factor the judge may consider in determining what is equitable.

Which spouse has primary custody of the children? – If there are children involved, the marital residence will likely be the property where they currently live. Child custody issues, absent an agreement, will need to be resolved as a part of the divorce. The court may favor a spouse that has primary physical custody in deciding who will stay in the marital residence.

Length of the marriage— It is not uncommon for marriages that last for decades to result in increased financial interdependence. A spouse that did not work but instead chose to raise the children and tend to the domestic responsibilities may be awarded a larger share of marital property, which may include the marital residence, to provide them with the resources necessary to move forward without their spouse.

Each spouse’s role in the accumulation, preservation, and appreciation of the assets — What a spouse brought to the marriage will be considered when dividing marital property. This will not only include financial contributions but can also incorporate the non-monetary contribution of a stay-at-home spouse, which may factor into who gets to stay in the marital home.

Vacation Homes And Connecticut Divorce

Like the marital home, vacation properties may also be subject to equitable distribution in a divorce. Vacation homes, however, do not present all the issues that surround the division of the marital home. These properties, by definition, were not the primary residence of the couple, so neither party nor the children will be uprooted if they are forced to sell. Still, it is not uncommon for spouses to have an emotional or sentimental attachment to a vacation property. What’s more, these properties may have also been passed down to one of the spouses or the couple together from a parent or family member. To be clear, even in those circumstances, the property may still be considered marital property and divided amongst the parties upon divorce.

Multiple Homes And Divorce

Some couples split their time in multiple homes located in different areas. Spouses that own multiple homes will find that all their real estate could be divided and distributed amongst them after divorce. Connecticut treats all real estate as marital property unless one spouse can offer evidence that will convince a judge to do otherwise. It’s important to understand that a property outside of Connecticut may fall outside of the court’s reach to force a sale or a change in ownership. When this happens, the jurisdictional issue will need to be handled by legal counsel.

For high-net-worth couples, they may have homes that are in more than one state. This can result in jurisdictional issues being litigated in different states. Clearly, this can be costly and time-consuming. Considering the potential jurisdictional issues surrounding multiple homes, it is essential to file in the correct court. Experienced, knowledgeable family law attorneys can provide competent counsel regarding jurisdictional issues.

Connecticut Divorce Lawyers

At Needle l Cuda, we are experts in all family law matters including divorce proceedings. This includes equitable distribution, jurisdictional issues, and property valuation. Our expertise in the law is the backbone of our practice, and we steadfastly continue our pursuit of being one of the top firms in Connecticut. Our attention to detail and personal, professional service is unmatched. Reach out to a Needle I Cuda divorce attorney today by calling (203) 557-9500 or by contacting us online.

Frequently Asked Questions (and Answers) about Asset and Property Division in Connecticut Divorce

Equitable property division is the "fair" distribution of property owned by both spouses—either marital or separate—in the event of a divorce as determined by the court. The critical term is fair concerning equitable property division proceedings. As discussed above, what the court deems "fair" in equitable property division is rarely equal. Connecticut is an all-property state, meaning that all types of property are considered when the court makes its findings. It is important to know the difference between the types of property to be divided.

While a divorce decree could result in a 50/50 split on all marital property, in practice, that rarely happens. In Connecticut, equitable distribution means that the court will consider various factors when they decide how the marital property will be divided. This could result in one spouse receiving the lion's share of the property to balance an inequity in earning power or to provide a financially dependent spouse with the means to become self-sufficient.

Separate property is any property owned solely by one spouse, such as property acquired before the marriage, gifts, or inheritances. In most equitable division jurisdictions, separate property would be excepted from the court's distribution discretion because property established to belong to one person should remain with that person. However, because Connecticut is an all-property state for the purposes of divorce, even the property which has been proven to be owned or under the control of only one spouse is still subject to distribution. This includes exotic property like art, cars, and other unique or custom items.

Marital property is property obtained by either party while married. This property can include items like cars, houses, or other financial assets acquired while you and your spouse are married. Even assets like retirement funds can be distributed in divorce to the extent that those funds were added to the account while married.

It is unlikely that any spouse will be left without any interest in their 401k at divorce. But because retirement accounts are eligible for "Equitable Distribution" in a divorce, it is possible that a spouse could be forced to part with a portion.

Through the discovery process, your lawyer can demand that your spouse provide all relevant financial information. This may include whether they have a retirement account and which institution services it. Spouses that seek to hide assets may be sanctioned by the court.

For a prenup to be valid in Connecticut, it must meet several requirements. The judge handling your divorce will be responsible for determining the validity of a prenup. However, the divorce attorneys at Needle I Cuda know the law surrounding prenups and will be your best resource in evaluating the potential validity of any prenuptial agreement.

It depends. In short, all property, no matter when it was acquired and by whom, can be divided and distributed upon divorce in Connecticut. This can potentially include a property one spouse owned in full before the marriage. While you may be permitted to argue that certain property should be excluded from the marital estate, the law in Connecticut does allow for equitable distribution of all property of both spouses.

The law in Connecticut does not favor either spouse. A judge deciding who gets the house is bound to follow the law. They are not permitted to favor either spouse when determining what is equitable. Still, a spouse that was the primary caretaker for the children during the marriage can argue that when considering all of the factors, they should remain in the marital home. Spouses must remember that that will not be the only factor considered by the court.

The court may award the marital home to the spouse that is awarded primary physical custody. Still, primary custody is defined as having the children more than 50% of the time. In other words, having primary custody is different from sole physical custody, which would mean one spouse has the children all of the time. In a sole physical custody situation, the spouse caring for the children full-time may be likely to get to remain in the marital home.

Yes, but not unless an order from the court has been obtained or you and your spouse agree that it is best to sell the home--and the sale of your house is incorporated into your final (court ordered) divorce decree. Clearly, before agreeing as impactful as this, you will want to consult with a divorce attorney before any agreement is finalized. Issues surrounding taxes, title, the mortgage, possible liens, and how the proceeds of the sale will be allocated will need to be sorted before a sale is effectuated.

It depends. In short, all property, no matter when it was acquired and by whom, can be divided and distributed upon divorce in Connecticut. This can potentially include a property one spouse owned in full before the marriage. While you may be permitted to argue that certain property should be excluded from the marital estate, the law in Connecticut does allow for equitable distribution of all property of both spouses.

Who will get the marital home after the divorce depends on several factors. If there is an agreement between the spouses on what will happen to the marital home, then that likely will be the result. For divorces where there is no agreement, a judge will decide based on the "Equitable Distribution" factors that must be considered by statute . If there are children involved who are currently living in the home, that may also have a bearing on who will get the home.

While it is rare that a spouse will lose all interest in a business due to a divorce, the business may need to be sold. Still, when this happens, the proceeds from the sale will be distributed between the parties. It is unlikely a business asset will be sold with only one spouse receiving all of the proceeds.

How much the business is worth can be determined through the use of business valuation experts. These professions will look at the business's data and draft reports that will tend to show what the business is worth. Another method is comparing the sale prices of similar businesses within the same industry.

Through a process known as discovery, your lawyer will be able to request all relevant information concerning the business and its financial health. Valuation experts can then analyze that info to paint a picture of the business asset's worth and projected outlook. Once a value is determined, the business asset or the value assigned to the business asset may then be distributed by the court upon divorce.

 

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