The Legal Issues 127
Your divorce lawyer may or may not handle this deed transfer as
part of your divorce. If not, you should seek appropriate assis-
tance from a real-estate attorney in the preparation of these deed,
or assignment of lease, and/or mortgage documents.
If you and your spouse cannot agree on what to do with your
home, the court will obligingly make the decision for you. In
these situations, the court will most likely rule that the house
should be sold and the net profit divided appropriately between
you and your spouse. If the house was true joint property, then
an equal division of the net sale proceeds will generally occur. It
should be pointed out that this mandatory sell-and-split result is
a vastly different one from the old days when I first began han-
dling divorce cases. It is also vastly different from the expecta-
tions of many of my clients.
A few years back, the typical result in any case where a house
was involved was that if there were kids in the family, and if
the wife was getting custody (another given in the old days),
then the wife would get temporary occupancy of the house until
the youngest kid turned eighteen. The basic theory was that the
judges would retain the house for the custodial parent and the kids
to live in so as to minimize the inevitable disruption to the chil-
dren that accompanies a divorce. This result used to be virtually
the standard gospel when I first started practicing thirty years
ago. Of course, houses were worth a lot less back then.
A fire sale of the marital residence. Nowadays, given the rapid
escalation in the values of real property over the years, things
have changed dramatically. Courts now feel that it is rather
unfair to the “out” spouse (whichever spouse had to vacate the
house) to leave him cooling his heels in a series of rented resi-
dences for the next fifteen years (while he waits for his three-
year-old to turn eighteen), until he can finally get the equity
back out of his own house via a forced sale. Most modern courts
won’t take the “delayed sale” approach these days—a house is
simply too big a piece of the parties’ financial pie to leave on
the back burner for up to eighteen years. Instead, the courts in
Hawai‘i and most other jurisdictions will now order the rapid
and mandatory sale of the marital residence and the splitting of
the proceeds.