My wife and I have decided to co-own our house (for the kids) after the divorce. We are having a difficult time figuring out how much she should pay on the mortgage since she has her apartment rent to deal with as well. Is there a general rule? Also, can she claim part of the tax deduction?
First let me preface my answer by stating that I am licensed to practice law in Oklahoma and Texas and not licensed to practice law in California, so I am unable to give you any specific advice regarding your question because I am not familiar with California statues and rules. However, I can give you a general response to your question, although for specific advice you need to speak to an attorney licensed in California.
My understanding of your question is that you want to know how much your wife should be paying toward the mortgage in your settlement agreement. It has been my experience in Oklahoma and Texas that Courts are leery about awarding property to both parties following a divorce. That is not to say if you reach an agreement in that regard, the Court will not approve such an agreement, but that if a trial is held the Court will usually award one party a residence or order the residence to be sold. Because of that there is no law and no case law that I am aware of in Oklahoma that would lend any guidance to your situation.
As I am not familiar with California law, so there maybe some in your state and I would urge you to consult a California attorney with this specific issue. As far as a settlement, most Courts will adopt whatever agreements you and your wife enter into regarding your divorce so long as you have both agreed and signed off on them. It may make sense for the party remaining in the residence to pay a larger share of the expense as it will be their primary residence. Another alternative would be to split in proportion to your incomes.
As I am not an expert in the area of income taxes I would suggest you meet with an accountant or other tax expert with regards to your tax question. But again, Courts will generally approve any agreements you reach, including an agreement as to who can claim what exemptions. Since you will be co-owners of the residence I believe you can share the deduction or one can claim the entire amount; however, I would again suggest speaking an expert in the field.
Bradley K. Cunningham is a Senior Attorney in the Tulsa, Oklahoma office of Cordell & Cordell where his primary practice is exclusively in the area of domestic relations. Mr. Cunningham is licensed in the states of Oklahoma and Texas. After growing up in Tulsa, Mr. Cunningham moved to Arkansas where he received his undergraduate degree in Accounting from Harding University in Searcy, Arkansas. He then returned to Oklahoma and received his Juris Doctor from the University of Oklahoma.