The American Dream Heads South

For many unhappily married couples, the so-called American Dream - home ownership - is a waking nightmare. For these unhappy individuals, the marital home, which is often the largest asset a divorcing couple divides, now becomes a prison "that neither spouse can afford to maintain, and that they cannot sell for what they owe."

Once upon a time, divorcing couples enjoyed the bittersweet consolation of dividing a home that had appreciated during their ownership as well as easy mortgage funding for the purchase of a replacement home or the refinancing of an existing mortgage. No more.

The collapse of the housing market makes the disposition of the marital home very much a problem. Moreover, with nearly one in six homes "underwater" -- that is, the mortgage is greater than the market value -- the traditional divorce regime has been turned upside down. Divorcing spouses "used to fight about who gets to keep the house. Now we fight about who gets stuck with a dead cow," said Gary Nickelson, president of the American Academy of Matrimonial Lawyers.

More than other assets, the marital home often becomes charged with emotional static because it becomes emblematic of the marriage, which is now a bittersweet memory of what was but is no more. When disposing of a house in a divorce (or even buying one as part of a happy marriage), people should remember a caveat: think house, not home. A home is a state of mind and a habit of the heart; the house is a box on a piece of land. The word home is warm and fuzzy; the word house is cold and angular. No one ever really buys or sells a home because it is made by the people who live and love and nurture each other there. Anyone can always buy a house because a house is just a box. Sadly, the home dies with the divorce or, happily, moves with the intact couple that goes elsewhere. The house stays where it is.

In the emotional tidal wave of a marital collapse, people, particularly a woman who loved and nurtured her children in the marital home, sometimes grab at the house. The collapse of the market raises a thorny consideration for divorcing mothers who want to keep the marital home. Courts frequently award the family home to the custodial mother, but a woman who accepts it as her share of the marital estate should think very long about the deal. Even under the best conditions, a house is a barren asset; it pays nothing until it is sold. The Great Recession has made this economic equation even more difficult: no one knows how far the housing market will sink. In some parts of the United States, houses have lost 30 percent or more of their value since the peak of the housing boom. And in places where the housing mania ran wildest, the bottom - the point where housing prices level - is not in sight.

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This book will explain in detail the property distribution aspect of divorce and separation. It will focus on the rights each spouse has under certain laws, situations, and circumstances, and how the division of the property will be decided by the court or through negotiation.

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COMMUNITY PROPERTY VERSUS EQUITABLE DISTRIBUTION -- There are two basic ways to handle divorce property division: Community Property: Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin and Puerto Rico are community property states. This means that all marital property is typically defined as community property or separate property. When divorcing, community property is typically divided evenly, and each spouse keeps his or her separate property. Equitable Distribution: All other states follow equitable distribution. This means that a judge decides what is equitable, or fair, rather than simply splitting the property in two. In practice, this may mean that two-thirds of the property goes to the higher earning spouse, with the other spouse getting one-third.
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