With nearly 20,000 marriages ending in divorce in the Washington area each year, "Who gets the house?" has become a thorny question asked by many splitting couples.
By all standards, divorce is fraught with emotional stress, and the necessity of selling a home in today's soft real estate market does not make the trial any easier. But prolonged house sales are extending relationships that may have already been terminated, according to divorce lawyers and real estate agents who deal with property settlements in the region.
"When people dispose of property, they look for the most bucks and fewest taxes because the real estate market and the government's tax bite are third parties in most settlements," said Bethesda divorce lawyer John Burke.
Pat Derwinski, a McLean sales associate who sold seven homes for divorced couples in the past year, said: "Even though they've made the management decision to divorce, sell the house and split the proceeds right down the middle, it's still a scary situation emotionally and financially."
Divorce lawyers said the home is usually transferred to the former wife, who almost always has custody of the children. But in many instances during the past decade, homes were purchased on the strength of two incomes, and often the former wife cannot afford to buy and maintain the house on her own salary.
"You see a lot of creative money-changing ideas when a couple's incomes are high or disparate," said Carolyn Goodman, a Washington divorce lawyer. "Even though personal issues are the same in a $200,000 house as they are in a $2 million house, people who fight over a $2 million home often have other assets with which they can bargain."
There are fewer settlement options in middle-income families where salaries are more nearly equal. "Because the wife can't afford to stay, the couple will sell the house in order to cash out the asset," Goodman said.
A suburban Maryland divorced woman, who requested anonymity, offered her "personal soap opera" as evidence of the financial choices people face when they attempt to retain possession of the marital home.
"In 1986, I could afford to keep our house on the combination of my salary and my ex-husband's child support and alimony payments," she said. "But when he stopped paying them I had to put the house on the market."
In 1987, when she sold the house, the divorcee considered buying down, or settling, into a $90,000 town house. Many women do this, she said. "I would have had no mortgage, but I would have had $50,000 in capital gains taxes on my portion of the sale of our $399,000 house."
Instead, she bought a $265,000 house, built a $45,000 addition and sold it in 1988 for $400,000. Last year, she bought a $360,000 house with an investor-partner who contributed a portion of the down payment.
"Fortunately, the market worked in my favor," she said. "Today, the market is an absolute disaster and I wouldn't be so lucky."
When she sold the marital home, her said her former husband owed her child support, alimony and college tuition payments. "So he lost $25,000 of his $45,000 from the proceeds from the settlement," she said.
Nevertheless, her post-marital property experience and impending tax bill have soured her outlook. "I just think a divorced woman today is unable to better her financial situation if she buys her own house," she said.
Property that has increased in value can become an albatross to the person who wins it in a divorce, concurred Marjorie O'Connell, a tax lawyer who specializes in divorces and heads O'Connell & Associates, a Washington law firm.
"In settlements today, it's perfectly common to throw the marital home to the wife in exchange for the husband's business assets," she said. "But we also ask for $100,000 to cover a wife's extra costs."
People who bought their houses at the market's peak in the mid-1980s are beginning to realize just how tough the market is today. They may not be able to sell their house at all or they may have to carry two residences -- his and hers -- or three -- his new, her new and their old -- for longer than they expect.
"Even if they sell, they may not realize the gain they expect," said Washington divorce lawyer Susan Friedman. "In either case, people are asking themselves if they want to be out of the marriage enough to be poor."
Divorce lawyers cited numerous examples of how market conditions can hamstring house settlements. In suburban Maryland, for instance, one couple who agreed to split the proceeds of their house sale on a 50-50 basis has not realized their goal after eight months on the market, according to Goodman.
"They started the sale at $180,000, but they're now at $140,000 to $150,000," she said.
In Northwest Washington, another couple has tried to sell their $500,000 house for several months.The husband, who is paying the monthly expenses, is getting anxious to sell but the wife is not, Goodman said.
"He wants to lower the price to get out of paying the carry, while she wants as much money as possible to start her life over," the lawyer said. "She'd buy him out if she could, but can't. So she's reluctantly selling it."
For two years, a client of divorce lawyer Jeffrey Greenblatt, partner in a Gaithersburg law firm, has not reached a settlement on the house he once shared with his former wife. The Potomac house has fallen in value to $1.7 million from $2.5 million.
"The price they finally reach will determine how the proceeds are split," the lawyer said. "In the meanwhile, only the lawyers will make any money."
O'Connell has been working with a client in New England where property values have fallen more than 20 percent in the past year. "We're going to have to sweeten the deal with additional cash in order to balance property depreciation with business assets," she said.
Since the beginning of the year, 5 percent to 10 percent depreciation on $500,000 houses has been common, the lawyer said. "With 50 other issues on the table, a $25,000 loss is not enough to upset the settlement," she said. "But a 10 percent loss on a $2 million house is enough to go back to the table."
Washington area real estate brokers in the region said the rewards of listing and selling a house for a divorcing couple still outweigh the risks. "In addition to sales and rentals by both parties, we get a tremendous amount of referrals on such sales," said Cathie Gill, a D.C. broker who has handled several listings of divorcing couples this year.
"But it's not easy work," she said. "It is a stressful time for these people and many of them take it out on their brokers."
The biggest problems for real estate agents and their divorcing clients are keeping communications open, maintaining the house in presentable condition and negotiating the sale.
"It takes twice as many phone calls, one from the husband and one from the wife, to sell a divorced couple's house," said Derwinski, a McLean agent.
"There's no teamwork on the sale," said Donna Evers, head of Evers & Co., a Washington real estate brokerage. "And the purchaser's offer can often become a pawn in the couple's disagreements."
When husbands and wives argue or won't talk, the agent is stuck in the middle, said Millie Sydnor, broker-manager of Mount Vernon Realty in Fairfax. "They selectively hear what you have to say to them."
Sooner or later, divorcing couples lose their patience with each other and their realty agent, said William Roth, a sales associate for Mount Vernon-Armfield Properties in Middleburg who has handled six divorced-home sales this year.
"No matter how much you try to stay out of someone's business, you end up dealing with personal issues," he said. "This is because you're asking people that already disagree about their lives to agree on the sale of their largest asset and their financial future."
The price of a property, not the divorced status of its owners, still determines most buyers' offers, brokers said. But the property's condition and how well the house shows can influence the offer.
"It's hard to get the painting and landscaping decisions made," Evers said. "It's usually a small amount of money that the sellers can't agree on because there's too much animosity between them."
According to Roth, one can usually tell a house is on the market because of a divorce or separation. "When a person leaves the home they don't just leave with their suitcase, they take half the furniture as well," he said. "And males are not the best housekeepers," he added. "I've had to tell a lot of husbands to clean their house."
Real estate brokers said few properties currently on the market, including those owned by separated or divorced couples, have not seen price reductions in the past few months.
"On one of our current listings, which has been on the market four months, the wife is standing firm on price while the husband is willing to bend," Sydnor said. "We're unlikely to get an offer at the current price."
Selling a house is stressful enough, she added. "But it is more so when the sellers are screaming at us."
Separation Pacts Spell Out Who Is Responsible for What
Divorce attorneys are loathe to allow their clients to assume the burden of important decisions and responsibilities during the settlement of the marital home.
As a result, many separation agreements describe exactly who is responsible for house repairs, landscaping and sales negotiations as well as when important tasks will occur.
"These terms should be expressed as clearly as possible," said Carol Goodman, a D.C. divorce attorney. "Some costs are split on a 50-50 basis and come out of the proceeds of the sale of the house, while others are paid off by both parties chipping in along the way."
Key settlement items and issues attorneys try to address in separation agreements include:
Repairs to the roof, windows and gutters.
- Painting the exterior and interior of house.
- Payment of the mortgage, taxes and insurance.
- Appraisals or broker's estimates.
- Selection of a real estate sales broker.
- Sales price and timetable of possible price reductions.
- Determination of who shall negotiate and accept the sale.
- Payment of closing costs.
When all else fails, some people protect themselves by agreeing to submit the sale of the house (or any term that may cause an argument during the settlement process) to third-party mediation or binding arbitration.
Attorneys said such a catch-all clause in the separation agreement saves everyone concerned needless headaches. - Kenneth Lelen