The distribution of the housing after divorce It is one of the topics that generates the most doubts and conflicts among couples who decide to separate. Not only because of the emotional value that the house usually has, but also because of the legal and economic implications of keeping the property and assuming the shared mortgage. In these cases, choosing the appropriate procedure can make a significant tax difference.
The notary María Cristina Clemente has spoken about this matter, and in a video published on her social networks she has explained what the legal options are to be awarded the home after divorce and how to do it in a more advantageous way from an economic point of view.
Two options to keep the home and the mortgage
Clemente clarifies that, whether the couple is married in property regime As in separation of assets, the procedure is similar. “In the case of divorce in married couples, both under a community property regime and separation of property, if one of the spouses wants to keep the home that constituted the marital home and the mortgage that both shared, they will have to liquidate the community property or extinguish the condominium and they can do so in two ways: in the regulatory agreement or by deed before a notary,” he explains.
Both routes are valid, but the expert points out that there is a clearly more advantageous alternative. “The option that wins by a landslide is by regulatory agreement because this way the payment of the tax on documented legal acts is avoided by not recording it in a public deed,” highlights the notary.
Despite this, Clemente highlights that this option poses a risk and that “if the bank does not expressly accept in that agreement the release of the spouse who leaves and the subrogation of the one who remains, that “other spouse” will continue to be linked to the debt.”
“This is considered a great legal uncertainty. If the spouse awarded the home and the debt does not pay, the other could be equally affected,” he points out.
This risk is eliminated if it is done before a notary, since in that case the bank can appear and formally record the release of the debt of the spouse who does not keep the house.