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Wisconsin Divorce Law and Selling a House: A Q&A With A Divorce Attorney

Wisconsin Divorce Law and Selling a House: A Q&A With A Divorce Attorney 

If you own a house in Wisconsin and are about to start divorce proceedings—or have already begun them—the first thing you should do is give yourself a thorough financial self-exam. That’s the advice of Thomas R. Napierala of the North Shore Law Firm

“Ask yourself if you can afford to keep your house, and if so, which spouse gets it. If you can’t decide on a plan quick, you should probably sell because delay increases the cost of holding it.” 

Attorney Napierala graduated from the University of Wisconsin Law School in 1990. He has practiced family law in southeastern Wisconsin since then. Over the decades, Napierala has witnessed people squabble over houses more times than he can count. 

Fair Deal Home Buyers sat down with Napierala to find out what you should know if you are going through divorce in Wisconsin and a house is involved.

Fair Deal Home Buyers (FDHB): In your experience, by the time a divorce is completed—and if there was a house involved—does it end up getting sold?

Thomas R. Napierala (TRN): Yes. Generally, a house is the biggest asset. Wisconsin is an Equitable Distribution State and it’s presumed each spouse is awarded 50 percent of the value of the house or the equity. Unless both parties are sitting on a lot of liquid assets, 65 to 70 percent of the time the house must be sold just to help pay lawyer fees. The reality is you’re going from one household with shared expenses to two, which is a more expensive lifestyle.

FDHB: Should a couple sell their home before they start divorce procedures or after? 

TRN: Typically, there’s no absolute rule. Sometimes people see what’s coming and they’ll work it out and sell the house ahead of time. But that’s rare. Generally, the house is sold during the divorce case, sometimes after.

FDHB: Are there alternatives to selling the house?

TRN: Buying the other party out is fine if one person wants the house and the other person doesn’t mind selling it and they can agree on the value and have the money to make it happen. The problem is, all of those factors can cause conflict. Maybe both want the house? Maybe they can’t agree on its value, or how it will be sold? Or even if the person who buys it should rehab it and sell it. Buying the other party out can open a huge can of worms. 

FDHB: Can people avoid the headache of selling by agreeing to co-own a house?

TRN: Yes, but this is very rare for several reasons. Who is responsible for repairs? Who will hire contractors? Who decides how much money should be invested in the home for repairs? Who has access? It can be done if both people are detail oriented and agreeable, but generally co-owning is a road to a lot of problems. I think it’s preferable for each party to go their separate ways.

FDHB: What other types of problems arise when people who are going through a divorce try to sell their house?

TRN: Often, one person is more motivated to sell than the other one, who might want to hold out to get top dollar for the house. There can be marketing disputes, such as how much money should be invested in the home to get it ready for sale. Or, if one of the spouses is living there, that person will probably have less incentive to liquidate, whereas the person who isn’t living there will be eager to get the money. 

FDHB: Any more advice?

TRN: Unless you have plenty of liquid assets, I recommend selling the house sooner rather than later. You have to come up with a plan because if you can’t come to an agreement on the house, the courts will step in and order a realtor or receiver to own the home temporarily. If a couple can’t agree on selling, the realtor or receiver will sell the house, and this person isn’t looking to maximize returns, they’re looking to liquidate the property. As I said, delay just increases costs.

Napierala Law Offices, LLC (NorthShoreLawFirm.com) serves metro-Milwaukee and all of southeastern Wisconsin.  

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