Recently, attorneys Anita M. Ventrelli and Michele M. Jochner of Schiller DuCanto & Fleck LLP co-authored an article for the Spring 2026 edition of the Family Advocate examining the legal and practical issues that often arise when dividing real estate during divorce. Their analysis highlights the unique challenges presented by the family home, where emotional considerations frequently intersect with complex financial and legal realities.
Below are several important insights drawn from their discussion.
1. The Family Home Is More Than Just Real Estate
For many divorcing spouses, the family home represents far more than a financial asset. It often carries emotional significance tied to family memories, stability, and personal identity.
However, during divorce proceedings, it is important to evaluate the home from a financial perspective as well. Factors such as affordability, maintenance expenses, property taxes, insurance costs, and the effect of retaining the home on the overall division of assets should all be carefully considered.
2. Ownership and Mortgage Responsibility Are Different Issues
A common misunderstanding in divorce cases is the assumption that transferring ownership automatically removes financial obligations.
As the authors explain, transferring title through a quitclaim deed may eliminate a spouse’s ownership interest, but it generally does not remove that spouse from liability under an existing mortgage. Unless the loan is refinanced or the lender otherwise releases the borrower, both parties may remain legally responsible for the debt.
For this reason, refinancing and lender approval often play a critical role when one spouse intends to retain the property.
3. Timing Can Affect Property Classification
The history of a property can significantly influence how it is treated during divorce.
Important considerations may include:
- Whether the home was acquired before or during the marriage
- Whether separate or inherited funds were used to purchase or improve the property
- Whether the mortgage was refinanced during the marriage
- Whether marital funds were used for maintenance, improvements, or debt reduction
These factors may affect how courts characterize the property and determine each spouse’s interest in the home’s equity.
4. Divorce Agreements Should Address Future Issues
Well-drafted agreements can help reduce future disputes involving real estate.
The authors emphasize the importance of addressing matters such as:
- Refinancing deadlines
- Responsibility for mortgage payments
- Indemnification provisions
- Procedures if refinancing cannot be completed
- Sale contingencies and timelines
Prenuptial and postnuptial agreements may also provide clarity regarding ownership rights and expectations before disputes arise.
5. State Law Plays a Significant Role
The treatment of real property varies considerably depending on the jurisdiction.
In community property states, marital assets are generally divided according to a different framework than in equitable distribution states. Understanding the governing legal standards is essential when evaluating ownership interests, reimbursement claims, and potential division strategies.
Because real estate is often one of the largest assets in a marital estate, state-specific laws can have a substantial impact on the outcome.
Final Thoughts
The family home is frequently one of the most emotionally and financially significant issues in a divorce. While personal attachment to a property is understandable, decisions regarding ownership, refinancing, and asset division should also account for long-term financial realities.
As highlighted by Anita M. Ventrelli and Michele M. Jochner, careful planning, clear agreements, and a thorough understanding of applicable law can help families navigate real estate issues more effectively and avoid unnecessary disputes.
Their article, “Home Is Where the Heart Is? Legal and Practical Strategies for Navigating Real Property in Divorce,” appeared in the Spring 2026 edition of Family Advocate, published by the American Bar Association Family Law Section.