How to get a divorce even when you can’t sell the marital home…

By Robin Roshkind, Esquire – West Palm Beach, Florida

The real estate market in Palm Beach County doesn’t exist anymore, unless you’re buying multi million dollar mansions on the island of Palm Beach.  (One just set a record in April 2008 for $81 million.)  So when divorce just doesn’t seem to force a sale, what are your options, OTHER THAN staying in a loveless, sexless marriage?  You have several.  The newest method is called a “short sale”, courtesy of your mortgage lender.

Short sales occur when you find a buyer willing to buy your marital home, BUT the offering price is less than the mortgage.  By way of illustration, if a marital home is listed for sale at $350,000 and the outstanding mortgage is $325,000 and a buyer makes an offer of $300,000, you normally will have a shortfall of $25,000 if you take the deal.   Prior to this terrible real estate market, you would have had to decline the offer or suffer the consequences of still being on the line for the deficit.  In today’s economy, the deal would be acceptable by certain lenders as a short sale.  These lenders would rather “forgive” the shortfall than take the house back on a foreclosure action.  This methodology allows you to unload the marital home and get your divorce without the severe consequences of a foreclosure on your credit history.

When it comes to short sales, remember to check with your lender first before accepting a contract for sale and purchase.  Consult with your tax advisor, too, because there could be tax ramifications to any transaction such as this.   

The second way to unload the marital home in order to get a divorce, is to give it to your spouse in the divorce action.  By refinancing, your spouse can buy you out of your interest.  Your spouse keeps the marital home and you keep the dollar equivalent of your legal interest in the home.  This method only works, though, if the home is worth more than the current mortgage.  In other words, there has to be equity in the home.

The third way to deal with the marital home is not to deal with it at this time.  You could allow your spouse to stay in the marital home and maintain it until such time as the real estate market improves.  You can still get your divorce today, but you will go from tenants by the entireties to tenants in common with your spouse.  In other words, you become real estate partners in the investment–that being the marital home.  A current, enforceable marital settlement agreement can stipulate that at a time certain into the future, you and your spouse will again meet to decide when and what to do with the marital home.  This method allows you to protect your investment until the real estate market turns around – which it will, we just don’t know when.

Conclusion:  You are not stuck with the marital home anymore than you are stuck in a bad marriage.  Take some affirmative steps to get on with your life. 

For additional information, please call my law firm, Robin Roshkind, P.A., for a consultation (561-835-9091) or visit the firm’s website at