Real Estate in Divorce

Divorce, Family Homes and Elliot in the Morning

On my Friday morning commute, I heard a guest on the radio show, Elliot in the Morning talking about his parents’ divorce, marriages and the legal fate of a family home. I rarely partake of EITM, but this time I stopped to listen (relevant portions of recording between minute marks 8:20-16:30 on YouTube).

Tommy Johnagin on Elliot in the Morning: Comedian Tommy Johnagin explained that when he was seven, his mother divorced his previous stepfather and married Johnagin’s current stepfather (none of this takes place in Virginia). The families lived in a small town. The current stepfather previously built a home with his own hands for himself and his ex-wife. When the current stepfather and his ex-wife divorced, the ex-wife got the house. Johnagin’s mother’s previous husband then married her current husband’s ex-wife (confused yet?). So Johnagin’s previous stepfather is now living in the home built with the sweat of the current stepfather’s brow. Johnagin commented to Elliot Segal: “I don’t even understand how this works.”  In this portion of the interview, I was impressed with how Johnagin weaved some earthy insights into family life with funny personal narrative, such a recent chance encounter with the previous stepfather in the checkout line at the local Wal-mart.

What are the ways a family home can possibly reach this kind of outcome in divorce? Although the facts are different, the Supreme Court of Virginia published a January 10, 2014 opinion, Shebelskie vs. Brown, that discusses a possible route.

Betty & Larry Brown in the Virginia Court System: Betty and Larry Brown completed a divorce in Florida.  One of their homes was Windemere, a landmark Tudor mansion in Richmond. (V.L.W. subscribers see July 22, 2013, “A Partition Suit Blows Up,” Virginia Lawyers Weekly) Sometimes, when an out-of-state divorce requires divvying up Virginia property, the parties will file an Equitable Distribution action in Virginia and the house matter will be referred to a court-appointed Commissioner. For reasons not discussed in the court opinion, this phase of the Brown divorce did not proceed this way.  Instead, Larry filed a partition suit in Richmond, seeking an order that Windemere be sold.

In Virginia, when co-owners of real estate cannot agree on what to do with real estate, one party may file with the court a request for Partition and a Judicial Sale. See, Va. Code section 8.01-81, et sec. Partition traditionally involves dividing the parcel equitably into smaller parcels. When the land cannot conveniently be divided into smaller chunks because that would destroy the value of any improvements, the Court will usually grant a sale of the entire property. The monetary proceeds of the sale are then divided. Lawyers try to use partition suits as a last resort because they are a very expensive way to sell a house and more likely to lead to further title litigation. The deputy clerk called the Browns’ names week after week on the Richmond Circuit Court motions’ docket. The Court ordered a Judicial Sale. Finally, Betty obtained confirmation from the Court that she could go to closing on the house to buy-out Larry. The facts suggest that spousal support owed by Larry would end up helping to pay for the buy-out.

In the trial court, the parties litigated over attorneys’ fees and awards of sanctions issued by the judge against some of the attorneys. On appeal, the Supreme Court of Virginia reversed the sanctions award. (I invite my trial lawyer readers to take a look at the Court’s interpretation of the term, “motion” in the sanctions statute)

The Stepfather’s House, Revisited: How does the house that one man built for himself and his family end up in the possession of his ex-wife and his current wife’s ex-husband? Most likely, the home was part of the marital estate in the divorce and went to the ex-wife either in a settlement or by court order.

In a way, Tommy Johnagin’s current stepfather should be flattered that both his ex-wife and her subsequent husband desired the house he built. As a builder, he can construct another one.

In the interview, Johnagin commented that he felt content with the stepfather he got in the step-parent “lottery.” In the end, a good stepfather makes a bigger difference in someone’s life than title to a mansion or an appellate court victory.

photo credit: » Zitona « via photopin cc

John Colby Cowherd
John Colby Cowherd

Attorney protecting the rights of Virginia property owners. Cowherd PLC (703) 884-2894