Divorce at Altitude: A Podcast on Colorado Family Law

What Happens to the Family Home in a Divorce | Episode 65

November 01, 2021 Ryan Kalamaya & Amy Goscha Season 1 Episode 65
Divorce at Altitude: A Podcast on Colorado Family Law
What Happens to the Family Home in a Divorce | Episode 65
Show Notes Transcript

Ryan Kalamaya explains what usually happens to the family home in a divorce in Colorado.

What is Divorce at Altitude? 

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado. 

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Ryan Kalamaya (1s):
Welcome to Divorce at Altitude, a podcast on Colorado family law. I'm Ryan Kalamaya each week, along with my business partner and cohost Amy Gosha or an expert, we discuss a particular topic related divorce or co parenting in Colorado. In addition, we have created a short series of lessons that will take you through the legal process of divorce and answer your questions from simple to complex divorce. Isn't easy. The end of a marriage, especially when children are involved, brings a great deal of loss and change. We hope these practical tips and insights will help you on your journey to a new and better life In our hypothetical divorce story involving Erica, Melanie Wolfe, once divorce becomes imminent.

Ryan Kalamaya (47s):
You'll recall that Eric asked himself a series of questions. One of those questions is, are Melanie and the children going to stay in the house. Indeed. Melanie is going to be thinking that exact same thing when she consults with her divorce lawyer. And that is because what happens to the family home and real estate in general is one of the most frequently asked questions in a Colorado. A divorce. This episode is focused on that scenario as well as what happens when real estate is sold in a Colorado, a divorce. First, the question of what happens to the family home is so frequently dealt with it's actually explicitly identified in the statute on property division in Colorado, and that's 14, 10, 1 13.

Ryan Kalamaya (1m 31s):
Under that statute, the court must consider quote, the desirability of awarding the family home or the right to live there in for reasonable periods to the spouse, with whom any children reside. The majority of the time, most divorce judges will tell you that they will consider the children even in equal parenting time arrangements and the desirability of awarding the family home to one parent. The reason is the divorce results in change. And often that change is seen as negative towards the children. If a child can wake up in the same bedroom, even if it's half the time or even less than half the time that's seen as a positive. Now there are certain circumstances in which the parties just can't afford to keep a house or one party.

Ryan Kalamaya (2m 13s):
Can't keep the house after a divorce. And we'll talk about that sale, but let's first focus on what happens when a party keeps the family home in a Colorado divorce. When the party keeps Property, we're going to have to deal with the value. So how do you determine the value of real estate in a Colorado Divorce? There's a couple of different ways. First you could use tax assessments. That's the value assigned to property, determine taxes for property taxes. Most judges, however will tell you that they don't find tax assessed values to be particularly persuasive. And the reason that they only happen every couple years and they're generally seem to be behind market trends. What about Zillow? Some judges will consider it.

Ryan Kalamaya (2m 53s):
Others will just reject it out of hand. And they're oftentimes seen as overly bullish or too high in value to be really reliable. You could use a CMA or a comparative market analysis from a realtor. You can also use an appraisal from a prior refinance and we'll get into refinance, but it might require that you get an appraisal done on the house to figure out the value related episodes that you might want to check out are a couple episodes. One, including Chris clue, where we talk about real estate in a divorce. We also have a long form episode on refinancing and mortgages. And indeed when someone keeps the property, assuming that you determine the value and agree on what's the parties going to keep the marital residence, you're going to often be confronting a refinance.

Ryan Kalamaya (3m 41s):
So check out that long form Episode to talk about it because it is something that's freely going to occur. What about commissions and taxes? Those are oftentimes going to be used by the party. That's keeping that resonance to try to reduce the value because it's going to lighten the load on their ledger or in their basket. Under Colorado law. Real estate commissions do not have to be assigned or considered if a party is going to keep the house. So the reason it's going to be speculative, why knockoff five to 6% from residents when it's not even going to be sold and the party might not realize those commissions. Now you recall that the statute on property division contemplates the write up for a parent to live for in a family residence for a reasonable period of time.

Ryan Kalamaya (4m 26s):
So it might be that the house is sold in a year after the kids finish high school, for example, or some reasonable period of time in that circumstance, you might factor in the commission, or you might have an agreement more going to talk about sales. Next on what happens to property. When is sold before we talk about selling real estate, we should also mention personal property is personal property included in the value of the house. Re-inhabit NAB a topic or a separate episode on personal property, but it's just something that I raise here because oftentimes people will consider the real is the family home. And they'll also consider the various furniture and electronics that are in the marital residence.

Ryan Kalamaya (5m 7s):
Next, let's talk about selling real estate in a collar or a divorce. Again, I'll remind you that we have a couple of long form episodes that address this particular issue in detail, but let's talk about it just in general terms. If there's going to be the sale of the marital residence, you got to ask yourself a couple of different questions. One is just one party going to live in the house. Oftentimes that's the case. And if so, there's going to be an incentive for that particular person to remain in the residence. And they might have a different opinion as to value, but they're oftentimes going to be agreements about who is the real estate broker and what are they going to list the property? Yes, you can use appraisals. You can have different real estate brokers determine the value, but there's different methods that we frequently use in determining in the list price.

Ryan Kalamaya (5m 55s):
What happens when you get an offer? Well, oftentimes you'll get, or have an agreement that there's a particular percentage, 95% or 90% of list price with standard. Contingencies is an example of an agreement where both parties contemplate the sale of the resonance. Other related issues is what happens. If there's a repair, who's going to pay the mortgage who gets credit for the mortgage interest deduction and on a tax return and a whole host of different issues. That's not something that I'm going to get into in this particular episode, but I wanted to at least cover the general terms of what happens in a Colorado divorce, because it is one of the most frequently asked questions that we see.

Ryan Kalamaya (6m 36s):
Thanks for listening or watching this short lesson on the Divorce at Altitude podcast. If you found this helpful, please leave a review or share with a friend. It does help for others that are going through or thinking about a divorce in Colorado. If you want to find out more information, please visit Kalamaya.law or divorceataltitude.com. That's kalamaya.law. Remember, this is educational information. It's not intended to be legal advice. Please consult with an attorney about the particulars of your case. We're happy to answer questions. Feel free to give us a call at (970) 315-2365.