Divorce Real Estate and Mortgage Journal July 2024 (2)

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MITIGATING TAX CONCERNS

WITH THE MARITAL HOME

DIVORCE

ISSUE 19, JULY 2024

REAL ESTATE & MORTGAGE JOURNAL

WWW.DIVORCELENDINGASSOCIATION.COM

04

05

HOUSING ASSISTANCE

TAX ACT

15

DOING IT RIGHT COSTS

LESS THAN DOING IT

OVER

18

3 MISTAKES TO AVOID WHEN

DECIDING THE FATE OF THE

MARITAL HOME

12

PROPERTY TRANSFER TAXES:

NAVIGATING THE FINANCIAL

IMPLICATIONS IN REAL ESTATE AND

DIVORCE

23

SPOTLIGHT INTERVIEWS

TABLE OF

PRESIDENT’S LETTER

DIFFUSING

ANCHORING IN

MEDIATION: A GUIDE

FOR DIVORCE

PROFESSIONALS

10

CONTENTS

The Value of Working with a Certified Divorce Lending

Professional (CDLP®)

A CDLP® brings the financial knowledge and expertise of a solid

understanding of the connection between Divorce, Family Law,

Financial and Tax Planning, and mortgage planning strategies

related to real property and divorce.

A CDLP® is trained to recognize potential legal and tax

implications of mortgage planning in divorce situations.

A CDLP® is skilled in specific mortgage guidelines as they pertain

to divorcing homeowners.

A CDLP® can identify concerns with support structures that may

conflict with mortgage planning opportunities.

A CDLP® works directly with the professional divorce team to help

implement a strategic divorce settlement agreement, ensuring the

best opportunities to secure mortgage financing after the decree.

A CDLP® can recommend financing strategies that help

divorcing clients identify mortgage planning opportunities for

maintaining the current marital home while helping to ensure the

ability to achieve future financing for the vacating spouse.

A CDLP® does not give legal or tax advice.

Divorce Mortgage

Planning Journal

Published by:

www.DivorceLendingAssociation.com

This for informational purposes only and

not for the purpose of providing legal or tax

advice. You should contact an attorney or

tax professional to obtain legal and tax

advice.

Copyright by

Divorce Lending Association, LLC

All rights reserved. No part of this

publication may be reproduced or

transmitted in any form or by any means,

electronic or mechanical, including

photocopying, recording, or by any

information storage or retrieval system

without the written permission from the

copyright holder.

The DLA is a national organization dedicated to bridging the gap

between the legal, financial, and emotional aspects of divorce and

the real estate and mortgage process, ensuring that divorcing

individuals have the knowledge, resources, and support they need to

secure their financial well-being and make confident decisions about

their housing needs.

What is the Divorce

Lending Association?

03 DIVORCE REAL ESTATE & MORTGAGE JOURNAL

LETTER

PRESIDENT’S

Dear Colleagues,

I am thrilled to announce the launch of our new REM-S (Real Estate Mediation

Specialist) certification! This innovative program is designed to complement and elevate

the value of our esteemed Certified Divorce Lending Professionals (CDLPs), enhancing

the critical role they play in the divorce process.

Our CDLPs work tirelessly to provide specialized support and expertise, ensuring that

divorcing clients navigate their real estate and mortgage decisions with confidence and

clarity. The addition of the REM-S certification will further empower our professionals

by integrating advanced mediation skills with their already robust knowledge of divorce

mortgage planning.

This dual expertise not only improves the quality of negotiations but also ensures more

informed, equitable outcomes for all parties involved. The REM-S certification represents

our commitment to continuous improvement and our dedication to offering the highest

level of service to those we assist.

I also want to extend an invitation to our readers to become Allied Professional

Members. By joining, you can connect with a network of like-minded professionals

dedicated to advancing their practice and supporting divorcing clients through these

challenging transitions.

I hope you find the articles in this edition of the Divorce Mortgage Planning Journal both

informative and beneficial to your practice. Thank you for your hard work and

dedication to this essential field.

PRESIDENT & FOUNDER

04 DIVORCE REAL ESTATE & MORTGAGE JOURNAL

While the Act provided much-needed relief and incentives for homeowners, it also introduced

complexities in the tax landscape, particularly concerning capital gains tax implications and

depreciation recapture risks.

These complexities arise in divorce, where one spouse moves into an existing rental property as their

primary residence and later sells the property. This article explores the Housing Assistance Tax Act of

2008, its impact on capital gains tax rules, and the potential tax risks for divorced spouses transitioning

rental properties into primary residences.

Overview of the Housing Assistance Tax Act of 2008

The Housing Assistance Tax Act of 2008 was a significant legislation with various provisions to

stabilize the housing market. Key components of the Act included:

Property Tax Deduction for Non-Itemizers: This provision allows homeowners who do not itemize

their deductions to claim a standard deduction for state and local property taxes.

Discharge of Indebtedness on Principal Residence: It excluded any discharge of qualified principal

residence indebtedness from income, providing relief to homeowners who had forgiven mortgage

debt.

Capital Gains Tax on Home Sales: Changes to capital gains tax rules for homes converted from

rental properties to primary residences were also introduced, affecting the tax treatment of gains

on the sale of such properties.

THE HOUSING ASSISTANCE

TAX ACT OF 2008

The Housing Assistance Tax Act of 2008 was

enacted to address the housing crisis that emerged

in the mid-2000s. This comprehensive legislation

aimed to stabilize the housing market, assist

homeowners facing foreclosure, and promote

homeownership through various tax incentives and

provisions.

AND POTENTIAL CAPITAL GAINS TAX RISKS IN DIVORCE

Written by Jody Bruns, President Divorce Lending Association

05 DIVORCE REAL ESTATE & MORTGAGE JOURNAL

CAPITAL GAINS TAX RULES AND THE HOUSING ASSISTANCE TAX ACT

Under general tax rules, homeowners can exclude up to $250,000

($500,000 for married couples filing jointly) of capital gains from the sale

of their primary residence, provided they meet certain criteria. These

criteria include:

Ownership and Use Test: The homeowner must have owned and used

the property as their principal residence for at least two of the five

years preceding the sale.

·Frequency Test: The exclusion can only be claimed once every two

years.

However, the Housing Assistance Tax Act of 2008 introduced a critical

change affecting properties converted from rental to primary residence

use. Specifically, the Act established rules for non-qualified use periods,

which impact the exclusion of capital gains for properties not used as the

taxpayer’s primary residence for the entire period of ownership.

Non-Qualified Use Periods and Their Impact

A non-qualified use period is when the property is not used as the

taxpayer’s primary residence. For properties converted from rental use to

primary residence, the period of rental use before conversion is considered

non-qualified use. This distinction is crucial because it affects the

calculation of the capital gains exclusion.

When a property has periods of non-qualified use, the portion of the gain

attributable to the non-qualified use is not eligible for the exclusion.

Instead, it is subject to capital gains tax. The formula for calculating the

non-excludable gain is as follows:

Divorce Situations and Rental Properties

Divorce often involves the division of marital assets, including real estate. Sometimes, one spouse may

move into a rental property previously part of the marital estate and convert it into their primary

residence. This scenario raises important tax considerations, especially when the property is later sold.

06 DIVORCE REAL ESTATE & MORTGAGE JOURNAL

What’s my property worth?

The two most common

methods for obtaining real

property value are obtaining

an appraisal or a CMA but

what’s the difference

between the two? The

primary difference is

perspective.

An appraisal is completed

by a licensed residential

appraiser who bases their

opinion of value on recent

comparable home sold sales

data.

A Comparative Market

Analysis (CMA) is

completed by a licensed real

estate professional who

bases their opinion of value

on what the property may

potentially sell for in the

current market.

John and Jane are divorcing. They own a property they have rented out

for the past ten years. As part of the divorce settlement, Jane moves into

the rental property, making it her primary residence. Five years later,

Jane decides to sell the property.

Step-by-Step Analysis:

Property History:

Rental period: 10 years

Primary residence period: 5 years

Total period of ownership: 15 years

Capital Gain Calculation:

Assume the property was purchased for $200,000 and sold for

$500,000.

Total gain: $500,000 - $200,000 = $300,000

Non-Qualified Use Period Calculation:

Non-qualified use period: 10 years (rental)

Total period of ownership: 15 years

Depreciation Recapture:

Assume Jane claimed $50,000 in depreciation deductions during the

rental period.

The $50,000 must be recaptured and taxed as ordinary income.

Non-Excludable Gain = (10 / 15) × 300,000

In this example, $200,000 of the gain is attributable to the non-qualified

use period and is subject to capital gains tax. The remaining $100,000 of

the gain may be eligible for the capital gains exclusion, assuming Jane

meets the ownership and use test requirements.

CONSIDER THE FOLLOWING EXAMPLE

07 DIVORCE REAL ESTATE & MORTGAGE JOURNAL

WHY BECOME

AN ALLIED

PROFESSIONAL?

Together, we can make

a difference. Join the

DLA today and become

part of the solutions

for divorcing

individuals facing

complex financial

decisions surrounding

real property and

mortgage planning.

Amy Valdivia

Director of

Allied Professionals

Education.

Resources.

Community.

Nothing matters more in winning than getting the right people on the field. How are you

incorporating Divorce Mortgage Planning into your case management with a Certified Divorce

Lending Professional?

POTENTIAL TAX RISKS FOR DIVORCED SPOUSES

The Housing Assistance Tax Act’s provisions on non-qualified use periods introduce significant tax

risks for divorced spouses transitioning rental properties into primary residences. Key risks include:

Increased Capital Gains Tax Liability: Due to the non-qualified use period, a substantial portion of

the gain from the property sale may be subject to capital gains tax.

1.

Depreciation Recapture: Depreciation deductions taken during the rental period must be

recaptured and taxed as ordinary income, increasing tax liability.

2.

Complexity in Tax Planning: Accurately calculating the non-qualified use period and the

corresponding taxable gain requires careful record-keeping and tax planning.

3.

Impact on Divorce Settlements: The potential tax liability associated with the sale of converted

properties should be considered in divorce settlements to ensure equitable distribution of assets and

liabilities.

4.

Tax Rate Variability: Capital gains tax rates may vary based on the taxpayer’s income level,

potentially leading to higher tax liabilities for higher-income individuals.

5.

08 DIVORCE REAL ESTATE & MORTGAGE JOURNAL

Divorced spouses can employ several strategies to mitigate the tax risks associated with converting

rental properties into primary residences:

Tax Planning and Advice: Engaging a qualified tax advisor to navigate the complexities of capital

gains tax rules and develop a strategic plan for property disposition.

1.

Use of 1031 Exchanges: Consider utilizing a 1031 exchange to defer capital gains tax by reinvesting

the proceeds from the sale into a like-kind property. However, this option has specific

requirements and may not always be applicable.

2.

Timing of Sale: Carefully timing the sale of the property to maximize the use of the capital gains

exclusion and minimize the impact of the non-qualified use period.

3.

Consideration of Deferred Maintenance: Investing in deferred maintenance and property

improvements may increase the property’s value, potentially offsetting some of the capital gains

tax liability.

4.

Comprehensive Divorce Settlements: Including provisions in divorce settlements to address

potential tax liabilities and ensure fair distribution of assets and liabilities.

5.

STRATEGIES TO MITIGAGE TAX RISKS

Emile’s journey into the world of divorce lending began with a commitment to helping

individuals make informed financial decisions during one of the most pivotal moments of their

lives. As a CDLP®, Emile specializes in assessing the financial intricacies of divorce, including

property division, refinancing, and mortgage qualification. This specialized knowledge allows

Emile to provide tailored advice that aligns with each client’s long-term financial goals.

What sets Emile apart is not just technical proficiency but a deep-rooted dedication to client

education and empowerment. Emile’s approach is holistic, considering both the emotional and

financial well-being of clients. By offering clear, actionable insights and fostering open

communication, Emile ensures that clients feel supported and informed throughout the

process.

For anyone facing the daunting intersection of divorce and homeownership, Emile Flowers

stands out as a trusted advisor, guiding clients toward secure and equitable outcomes with

professionalism and compassion.

Read

more

about

Emile

at

https://www.divorcelendingassociation.com/offices/emile-

flowers.cfm

The Housing Assistance Tax Act of 2008 introduced critical changes to capital gains tax rules

that significantly impact divorced spouses converting rental properties into primary

residences. Understanding these rules and their implications is essential for effective tax

planning and risk mitigation.

Divorced spouses must carefully consider the potential tax risks of selling converted properties

and employ strategic planning to minimize their tax liabilities. By engaging qualified tax

advisors, utilizing tax deferral strategies, and incorporating comprehensive provisions in

divorce settlements, individuals can navigate the complexities of capital gains tax rules and

make informed decisions about their housing and financial futures.

09 DIVORCE REAL ESTATE & MORTGAGE JOURNAL

Introducing Emile Flowers, CDLP®

Emile Flowers, a Certified Divorce Lending Professional (CDLP®), is

making significant strides in the field of divorce mortgage planning. With a

comprehensive understanding of the complexities involved in divorce and

real estate, Emile brings a unique blend of empathy and expertise to the

table, ensuring that clients navigate this challenging period with confidence

and clarity.

Understanding Anchoring in Mediation

Anchoring typically occurs early in negotiations when one party makes an initial offer or demand that

unduly influences the mediation process. For example, if one spouse demands an unrealistically high share

of assets, this figure can set a precedent, making any subsequent negotiations revolve around this inflated

value rather than a fair assessment of the assets.

The Impact of Anchoring

Skewed Negotiations: Anchoring can cause the negotiation process to skew heavily in favor of the party

who sets the initial anchor, often leading to imbalanced settlements.

Emotional Distress: When one party feels the anchor is unfair, it can lead to increased emotional

distress, resentment, and a communication breakdown.

Prolonged Mediation: Anchors can prolong the mediation process as parties struggle to move past the

initial figures and reach a mutually acceptable agreement.

Strategies to Diffuse Anchoring

As a divorce professional, there are several strategies you can employ to mitigate the effects of anchoring

during mediation:

Set Clear Guidelines: Before mediation begins, set clear guidelines and expectations. Explain the

potential pitfalls of anchoring and encourage both parties to focus on equitable outcomes rather than

initial positions.

Use Objective Data: Introduce objective data and benchmarks early in the process. These can include

financial statements, property appraisals, and legal precedents. Grounding the discussion in factual

information can reduce the influence of arbitrary anchors.

Encourage Open Communication: Foster an environment where both parties feel comfortable expressing

their concerns and needs without resorting to extreme positions. This can help prevent the establishment

of unreasonable anchors.

Diffusing Anchoring in Mediation: A Guide for

Divorce Professionals

10 DIVORCE REAL ESTATE & MORTGAGE JOURNAL

Mediation is crucial to achieving amicable settlements in

the often emotionally charged divorce process. However,

one psychological phenomenon that frequently hinders

productive negotiations is anchoring. Anchoring refers to

the cognitive bias where an individual relies heavily on an

initial piece of information (the "anchor") to make

subsequent

judgments

and

decisions.

For

divorce

professionals, understanding and effectively diffusing

anchoring can significantly enhance mediation, leading to

fairer and more equitable outcomes for both parties.

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