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What Happens to Your Home in a Divorce

Mar 4, 2008
There is a lot of turmoil involved when a couple is going through a divorce. One doesn't necessarily want to think about selling a home, available tax benefits for residents in Houston, Texas, and what needs to be done when one spouse is still living in the home. Selling a house is also very stressful and one may not want to have to deal with this while they are in the midst of a divorce. But the truth is that the house is probably the biggest asset the couple has so it's very important to think about who will get it, or any proceeds from its sale. There are many different scenarios that can play out in a divorce that will affect this decision.

You may be eligible for a tax break if the home is sold while you are still married. To be eligible for the tax break, the couple must still be married at the end of the year that the house was sold. Doing so will allow up to $500,000 in profit to be excluded from federal capital gain taxes. A couple may apply for this tax break if they file a joint tax return and if the home was owned by at least one person in the partnership two of the five years beforehand. You may also qualify for this tax protection if both partners used the home for two of the five years before the sale. If you choose to file separately, each partner can still claim up to $250,000 on their tax return, provided that they still met the two-out-of-five years qualification. It's important to remember that when living in Houston, there may still be taxes applied from either the city of Houston or the state of Texas.

If the home is sold after the divorce but one of the partners has been living there, they may use the other spouse's time living in the house to meet the two-out-of-five criteria. The spouse that remained living in the house after the divorce may then sell it but they will only be eligible for $250,000 due to the fact that they are no longer married. However, if the spouse that remained in the house after the divorce was to remarry and lived in the home for two years after the new marriage, they may claim the full $500,000 when selling because of the new spouse's time period in the house.

Things become a little more complicated when the couple has divorced, one spouse still lives in the house, but it is still owned by both parties. In this case, after three years, the spouse that is no longer living there will not meet the two-out-of-five criteria and so would be fully taxed on any profit made from a sale of the home. A way to escape this tax cut is to stipulate in the final divorce papers that you permit the other spouse to remain in the house but your share must be paid for in full when the time period is up. Or you can place another time limit on it, such as when the children reach a certain age. Doing it this way will go towards the non-resident spouse's time of being in the house and will provide them with the full $250,000 tax break.

If the couple had owned a vacation home, either within Houston or outside of the city, and one of the spouse's wishes to make that their primary residence after the divorce, they can come to that agreement when assets are being divided between the two. The $250,000 tax break will then still apply to the spouse living in the vacation home, provided that they have not already used the two-out-of-five criteria with the previous main residence. Should the spouse remarry and the new couple live in the vacation home together, after two years they will be eligible for the entire $500,000 tax break.

The actual process of selling your home during or after a divorce is no different than selling it for any other reason. You still want to make sure that you put your property on the Houston market as far in advance as possible to allow for the most time possible to arrange things such as closing dates. Because there can often be people changing their minds about certain aspects of the settlement and other decisions that need to be made, put all agreed upon dates in the selling documentation to ensure that all parties will work to make the sale of the home as easy as possible.

You then want to make sure that the inside and the outside of the house are impeccable. Clear away the clutter, make any repairs that need to be done, and give the house a very thorough cleaning. This will make the home more attractive to potential buyers and help it to sell more quickly.

Selling a home in times of divorce is a very emotional ordeal. Knowing your options and what needs to be taken into consideration can help a great deal and make a very stressful situation a little easier to contend with.
About the Author
Paige Martin is award winning Houston realtor. Her website features 500+ pages of data and lists all Houston Condoss for sale. Paige is a member of the Houston, Texas, and National Assoc of Realtors. Paige Martin, Martha Turner Properties.
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