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FEATURE ARTICLE

Selling the family home after separation: are divorce lawyers and judges really necessary ?

When spouses decide to separate, joint family assets are usually liquidated and divided. The family home is often the most valuable asset that needs to be addressed. However, of all the assets, the home is the one that often carries the most sentimental value and triggers the strongest emotional response. In many cases, the separation is not mutual and, in those instances, the spouse who did not initiate the separation may not be willing to vacate or sell the family home. That is, the spouse may not want to undergo the upheaval of changing residences, changing the children's school, leaving close neighbours or settling into a new community - all valid reasons to not want to sell the home. Alternatively, the spouse may wish to oppose, delay or obstruct the sale of the home because of feelings of hurt and anger or other reasons not considered valid. In some cases, one spouse may wish to purchase the other spouse's interest in the family home. With any joint asset, because both spouses are the legal owners, neither has a superior right to purchase the asset from the other. Thus, in cases of a jointly owned family home, if one spouse wishes to remain in the home and purchase the other spouse's interest, the spouses must agree on a process to determine its value and buy-out. In most cases, this is simple. The spouses retain an accredited real estate appraiser to perform an analysis of comparable homes in the neighbourhood, assess their sales history, adjust for differing characteristics such as lot size, garages, square footage and the condition of the structure, in arriving at an expert opinion on the market value of the home. This often is the best evidence of the value of the family home which the spouses can use to negotiate a buy-out.

But what happens if one spouse does not agree with the appraised value, or even multiple appraisals ?


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