Topic 7: Property Division – Real Estate

Hi there,

The 7th topic to consider is part of the property division.  This is controlled by Massachusetts General Laws chapter 208, section 34.

Volumes have been written about this and frankly it is an area where cases that may go to trial as valuation issues, particularly with businesses, can be intractable.

Below is an general outline of some issues to think about when dividing real estate, though every month someone comes up with something new, so this is NOT all inclusive.

Your home:

  • If you rent this is simpler; however, there may be lease issues, such as who is on the lease, or will one of you need to indemnify the other?
  • If you own, consider who will have use and possession during the divorce and what will happen with eventual ownership.  If there is a sale or transfer within the couple or not, you need to think about the tax issues, including capital gains (don’t forget the exclusion on sale for your primary residence), as well as who deducts the interest and real estate taxes.  You will have to decide how the bills are paid pre-divorce.  Will the mortgage need to be re-written to remove one party post divorce?  If there is to be a sale or transfer there may be timing issues to consider as well, such as when the children finish a school year or a certain grade.
  • Then there is your other real estate (vacation house, rental or business property, time shares,  etc).  Many of the same considerations may apply as with your home, but the capital gains tax will be different.

All of these additional properties will need to be valued as well.