It is always suggested that you seek legal advice prior to making any agreement with your spouse. Some people mistakenly believe that it is a 50-50 split. This is actually rarely the case. There are a number of factors to be considered so early advice will give you an idea of what you are entitled to. After that you can start negotiating with your spouse as to how the property should be split.
Who keeps the family home?. The first thing that you must do if you want to keep the home is to get a market appraisal from a real estate agent to see what it’s value is. They do not usually cost anything to get.
If you have a mortgage then you will need to factor in how much you will need to pay your spouse as this in most cases is added to the mortgage. Again, early legal advice is beneficial to talk through these important issues. You may find that lending institutions will not allow you to borrow the amount to cover the current mortgage and any payment to your spouse. Early advice from a mortgage broker is also advisable to see whether you can in fact keep the home. If you can then if you enter into a proper legal agreement with your spouse you will also save stamp duty on the transfer on the home. If you don’t have a formal legal agreement then you will be liable for stamp duty that can run into tens of thousands of dollars. For instance, on a $560,000.00 home the stamp duty would be around $20,000.00.
In cases where you cannot agree on who keeps the home then selling the home may be the only option. In that case you will be liable for costs such as agent fees and commission. Then you would be liablity for stamp duty on your next home purchase. So it is easier if one of you can keep the home especially if there are children involved.