By Jennifer M. Paine
Timeshares are one of the most difficult assets (or liabilities) to divide at divorce.
Sometimes, the vacation spaces are so luxurious that spouses cling to them like a lottery ticket arguing over who gets to go on those vacations after divorce.
More often, however, those promises of luxury and affordability in the heyday of the timeshare business have bellied-up, and what once looked like a good idea has turned out to be years riddled with taxes and fees, strict usage schedules, and a vacation no one wants and you cannot sell.
In other words, this is not something you want to deal with every year with your ex-wife.
Then what can the two of you do now with that timeshare so that neither of you have to deal with the other later? Talk to your divorce lawyer and consider these three options.
1. Award It
If one of you wants the timeshare more than the other and can afford it, then award it to that spouse. It makes little sense to fight over a timeshare you really do not want.
However, keep in mind that the timeshare is either an asset or a liability. Have it appraised, and include equity, if any, to be divided between the two of you.
If you keep the timeshare, then one-half goes to you spouse. If your spouse does, then one-half goes to you.
If there is debt, then make sure your agreement has specific terms for how that debt is paid and when. At a minimum, require your spouse, if she keeps it, to refinance or otherwise remove your liability within a set period of time.
2. Sell It
If the two of you absolutely cannot agree or your spouse wants the timeshare but cannot remove your liability, then sell it ASAP.
Ideally, this will occur while your divorce is pending and not yet finalized so that the two of you can pay whatever costs are incurred from your joint funds before you divide them.
If this is not possible, then whoever pays the costs should be reimbursed post-divorce (e.g., by taking less or more of a bank account, home equity, etc., or receiving a promissory note and pay back with interest).
If there is a loss, then the two of you must pay. Consult with your divorce lawyers and a financial advisor to determine if you can free funds from a retirement account to pay it and, if so, how.
If there is a gain, then, again, consult with your divorce attorneys to determine what the tax consequences are and how to divide it.
3. Share It
In exceptional circumstances, you and your spouse may be able to share the timeshare post-divorce. This is rarely done, and many family law attorneys would discourage it for all but the most exceptional, good-natured divorces.
Your agreement must specify who receives the vacation time when (e.g., year by year, two years in a row, equally each year, etc.), as well as who pays what fees when and what happens when that person fails to pay.
Consequences for nonpayment are key. For example, if the person who is supposed to pay fails to pay timely, then that person should forfeit the vacation time and the now-exes must meet to decide how to address nonpayment going ahead.
A one-time nonpayment may be OK, but a repeated failure to pay essentially awards the timeshare – and the debt – to one ex who may not have anticipated it, and this should cause both to sit down and reevaluate options 1 and 2 above instead.
Whatever you do, do not wait for the eve of the divorce to decide what to do with this timeshare. There are many contingencies, intricacies, and fees involved with these timeshares that need thorough investigation and consideration.
Instead, have that discussion early and often, and you may be the one enjoying a vacation after your divorce.
Jennifer M. Paine is a Michigan Divorce Lawyer with Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.
Ms. Paine received her Bachelor of Arts in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.