It’s hard to believe it’s been six years since gay marriage became legal in the U.S. But sadly, with marriage—whether it’s a heterosexual or same-sex couples, there may be undoubtably a high percentage ending up in divorce. Every divorce is unique, but same-sex divorce has both similarities to and differences from a divorce between a man and a woman. This includes when it comes to same-sex divorce and the house.
I have to believe that the emotional part of same-sex divorce is like every divorce: heartbreaking, painful, depressing, scary, and confusing. There can also be intense feelings of anger, resentment, and bitterness.
But what about the legal aspects of same-sex divorce, specifically same-sex divorce and the house? Before the same-sex marriage laws went into effect, states were left to create their own laws, which included laws for Civil Unions or Domestic Partnerships. Therein lies the complexity and uniqueness to the legalities involved in same-sex divorce and the house vs those in heterosexual divorces.
For same-sex divorce advice, I would highly recommend talking to a divorce attorney. That isn’t my area of expertise. But when it comes to same-sex divorce and the house, here are some things to consider and tips to making sure your same-sex divorce is fair and amicable:
1. When I have a client who is going through a same-sex divorce, I always recommend pulling the Title (or Deed) of the house to verify ownership. A former partner could still have ownership or a stake in the equity.
2. A divorce attorney or divorce mediator who is well-versed in the current statutes of same-sex divorce should be involved with regards to all aspects of the divorce, but especially the family home, prior to selling if possible. I work with a team of divorce-related professionals and can certainly point you in the right direction.
3. As with all divorcing couples, I suggest meeting in person or virtually with each spouse to discuss the process and how I work as a neutral real estate expert. In order to ward off future conflict, I encourage the divorcing spouses to sign an Addendum to the Property Listing Agreement. The Addendum includes a listing timeline (when to lower the price and by what percentage), the dollar amount they are willing to accept, and even when they are willing to have showings.
The Addendum is to provide structure and often helps couples think about the process in advance and try to get on the same page, regardless of personal feelings. It also helps speed up the process. Remember, as a real estate agent and CDRE (Certified Divorce Real Expert), I am a neutral third party. I do not take sides. I work to get the house sold for the most amount of money in the lease amount of time.
4. If one person wants to stay in the property, there are many factors that come into play and need to be addressed. For example, in order to figure out the market value of the home, simply looking at comps isn’t enough nor is an outdated appraisal. I often suggest that divorcing spouses have an inspection, pre-list in order to determine any issues that may come up in a buyers inspection. These issues can be addressed and noted that the future listing price reflects is based on this discovery. This could change the dynamics of splitting marital assets.
5. In a same-sex divorce, do not assume that proceeds from the sale of the home will be a non-issue. Depending on how many layers of legalities and rights to the property there are, this could get complicated. It’s a discussion best suited for each parties’ divorce attorney, and/or a divorce mediator.
In closing, divorce is extremely painful, and the legal aspect of it is stressful. It’s the same level of stress whether you are a heterosexual couple going through a divorce or a gay couple going through a same-sex divorce.