When a couple separates, it is difficult both emotionally and legally.  One of the most contentious aspects of a separation is the division of the jointly-owned property.

What to do with the marital home?

As the separation/divorce proceeds, the couple will begin to divide all of their property. Often, the couple will execute a separation/divorce agreement, explicitly declaring the ownership (and terms thereof) of certain large items, such as the marital home or car.

A properly-drafted separation/divorce agreement will identify the owner of a particular item and clearly state the terms of any agreement to purchase the ex-spouses interest in an item.  For example, a separation agreement may state: “On or before December 31, 2018, Husband shall pay Wife $100,000.00 in exchange for Wife’s ½ interest in their jointly-owned property located at…”  Here, the agreement clearly states that the ex-husband has until December 31, 2018 to pay his ex-wife $100,000.00 to buy her out of their marital home.

If the ex-husband in the above-example fails to pay his ex-wife $100,000.00 by December 31, 2018, then he is in breach of contract and the wife may choose to initiate legal proceedings.   There are many options that the ex-wife would have. If negotiations have failed, or are unlikely to be of any benefit, the ex-wife may choose to sue for specific performance of the separation agreement.  If the ex-husband is financially unable to pay, the ex-wife may seek to have the property sold by a court-appointed trustee. Upon the sale of the property, she could collect the $100,000.00 owed to her under the separation agreement.

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As is usually the case, the specific facts of each case determine the best plan of action.  If you have any questions concerning a separation/divorce agreement or any other type of agreement, please contact Ryan Lewis at the Law Offices of Ross W. Albers, LLC.