In Indiana, all property brought into a marriage or acquired during a marriage up to the date of filing for divorce is marital property subject to a presumptive equal division. This includes vacation homes and timeshares. A timeshare, by definition, is a property with a divided form of ownership or use rights. In many cases, one spouse may have a significant attachment to a vacation home or timeshare. What happens if both parties want the vacation home or timeshare? What will the court do? This blog addresses some of the thorny questions surrounding vacation homes and timeshares.
The point of departure in understanding and answering “who gets the vacation home in a divorce” is to understand that while the deed and mortgage may be solely in one spouse’s name, this title does not matter—this is still marital property the divorce court must apportion to one party or the other. This means the divorce court can award the vacation home to the spouse not on the mortgage and deed if it results in a just and equitable division of the marital estate. This is where skilled legal counsel comes in to develop the evidence on your behalf if both parties want the property. To have your best chance of being awarded the vacation home or timeshare, you must develop the evidence with your counsel to show why it is just and equitable that you receive the vacation home or timeshare. Do you have an emotional attachment to the property? Why should the court award this property to you? These are the type of questions you must develop the answers to as the divorce court considers in making a just and equitable division of this marital property.
In addition, evidence must be put on the court record about any mortgage and a refinance if both spouses are on the mortgage. This removes the liability of the mortgage from the spouse who is not receiving the property from the obligation of the mortgage if it is indeed refinanced. What a court does in awarding a vacation home or timeshare comes down to the evidence it receives. What do you want? Work through this with your counsel. Put on the evidence at trial.
Perhaps the most contested legal issues surrounding family vacation homes are where the vacation home is handed down through the generations. For example, with certain lake homes in northern Indiana, this is clearly the case. If the spouse who did not inherit the lake home (or purchase it from the family owners) wants the property, this is where the strong fight typically comes in. This is where you must develop the evidence with your counsel. As a part of doing so, one of the first things your divorce counsel will do if you want to argue for the vacation home is to determine if there is complete or partial ownership of a family vacation home with any other party. If there is partial undivided ownership, the court can only consider the value of the part that is in the marital estate. The value of the property must be determined. Typically, this is done by a certified real estate appraiser.
Once it is determined who owns the home (and value), your counsel will likely want to develop the history and connection you as a party have with the vacation home. At trial, the argument skilled counsel will make is that while this is marital property, it should be set over to the spouse with the attachment/connection to the home. This is powerful evidence to make your case. However, the court will likely order half of the value of this home to be paid to the other spouse. In some cases, there may be an argument for a deviation from the presumptive equal division depending on how the vacation home was acquired and used. This is determined by the court based on the evidence it receives. This is where developing trial evidence with counsel is again critical.
The other “vacation home” that may be a marital asset is a timeshare. While timeshares were the rage at one time, they have fallen out of favor and many parties just see them as a liability. The place to start with any given timeshare is to determine if it is marketable. Some timeshares simply have little demand and low to no value. Unfortunately, the fees associated with the timeshare still must be paid. It may be each party is arguing that the other take the timeshare because it is a liability. On the other hand, timeshares may be in places where they are valuable, such as Orlando, Florida. If one spouse has an attachment to the timeshare, he or she may argue this to try to receive the timeshare, just as with vacation homes. However, half of the value of the timeshare will have to be attributed to the other party if the court makes an equal division of the marital estate. Again, what the court does with the timeshare comes down to the evidence it receives. Develop this with your counsel.
The takeaway from this blog is that vacation homes and timeshares are marital property, and the trial court (divorce court) has vast discretion in who it awards a vacation home or timeshare to. You know what you want as it relates to your vacation home or timeshare. It is key to put this evidence on the record, so the court knows what you want and why it is a just and equitable division. This is how vacation homes and timeshares are addressed in divorce cases in Indiana. This blog was written by attorneys at Dixon & Moseley, P.C. who handle divorce cases across the state. This blog is not intended as legal advice, nor is it a solicitation for services. It is an advertisement.