Divorce and Change of Residence Within the Family | Attorney Rozil Amir

Eviction and Relocation: A Legal and Emotional Crossroads

When a couple decides to separate, the question of who will remain in the home and who will leave is not simple. Whether the apartment is jointly owned, owned by one spouse alone, or held under a family tenancy — each scenario carries unique legal, financial, and emotional complications. In Israeli family law, the issue of the apartment and division of assets are critical components of a divorce settlement or court judgment.

Rosil Amir Law Firm specializes in navigating this complexity with an emphasis on protecting your rights, maintaining family stability (when minors are involved), and ensuring fair asset division. In this guide, we will explore the legal, financial, and practical aspects of divorce and relocation within the family context.

Why Is This Matter So Critical?

A home is not merely an asset — it is a living space, the center of family life, and financial security. When a couple divorces, the question of who will remain in the family home and who will leave can impact:

• Child custody: The children's home typically remains stable, and a parent may be entitled to remain in the apartment for the children's sake.
• Financial stability: Moving to a new apartment requires substantial expenses (moving costs, rent, furniture, etc.).
• Asset division: The apartment's value is often the largest asset in divorce distribution.
• Mortgage rights and loans: If the apartment is mortgaged, it is necessary to understand who will bear the repayment obligations.
• Capital gains tax and purchase tax: Real estate transactions related to divorce may involve significant tax liabilities.

The Most Common Scenarios

Every family is different, and each divorce and relocation situation has unique characteristics. However, there are several recurring scenarios that law firms and courts encounter:

• Jointly owned apartment: Both are owners, and it must be decided who will buy the other's share or who will sell theirs.
• Apartment owned by one spouse only: The other spouse may be entitled to rights in the apartment under family law, even if not a registered owner.
• Apartment under family tenancy: The lease is in one spouse's name, but both may be entitled to remain or relocate.
• Apartment with an active mortgage: It is necessary to understand the borrower's obligations and how divorce affects repayment capacity.
• Apartment received as a gift or inheritance: May be the personal property of one spouse, which changes its status in the division.

Divorce Agreement and Its Role in Regulating Property Transfer

A divorce agreement is the central document that regulates all aspects of separation, including the matter of the property. Unlike a court judgment imposed by a court, a divorce agreement is a contractual agreement between two parties, approved by a Family Court.

Components of a Divorce Agreement Regarding Property

A quality divorce agreement on property matters should include:

• Property Identification: Exact address, apartment number, Tabo number (land registry), and property value (as determined by professional appraisal).
• Ownership Status: Who owns it, whether jointly or individually owned, and in what percentages.
• Property Arrangement: Who will remain in the property, when the other will leave, and whether there is a transition period.
• Asset Division: If the property is sold, how the proceeds are divided; if one party purchases the other's share, at what price and under what terms.
• Financial Obligations: Who pays the mortgage, who pays taxes and insurance, who is responsible for repairs and maintenance.
• Custody and Visitation Rights: If minors are involved, how the property arrangement affects custody and visitation rights.
• Capital Gains Tax and Property Transfer Tax: Who pays tax obligations if there is a purchase or sale transaction.
• Insurance and Legal Obligations: Who insures the property and who is responsible for compliance with building and safety regulations.

Alternative Arrangements

One party does not always remain while the other leaves. In modern times, there are newer arrangements:

• Nesting: The children remain in the property, and the parents alternate living there on their custody days. This approach preserves children's emotional stability but requires two additional living spaces and considerable flexibility.
• Joint Sale: Both parties sell the property, divide the proceeds, and each purchases their own space. This approach can be financially fair but may be emotionally difficult.
• Mutual Purchase: One party purchases the other's share in exchange for payment or as part of comprehensive asset division.
• Enhanced Rental: If the property is rented, one party may take the rental agreement and the other leaves.

Legal and Financial Implications of Property Transfer During Divorce

Asset Division in Israeli Family Law

In Israeli family law, when a couple divorces, assets and liabilities are divided according to principles of justice and fairness. The apartment, as a significant asset, is often the focus of dispute.

The Family Court examines several factors when determining a fair division:

• Economic Contribution: Who contributed more funds to the purchase or maintenance of the apartment?
• Domestic Contribution: Who cared for the children and managed the household, thereby enabling the spouse to earn income?
• Needs of Minors: If there are children, which housing arrangement protects their welfare and security?
• Economic Capacity: Who can afford to purchase or rent a new apartment?
• Duration of Marriage: Long marriages often result in more equitable division.
• Fairness and Justice

Capital Gains Tax and Purchase Tax in Divorce Transactions

When an apartment changes ownership as part of a divorce, significant tax liabilities may arise. This is a critical component often overlooked:

• Capital Gains Tax: If the apartment has increased in value since purchase, the party selling is generally liable to pay tax on the difference. However, there are exemptions and offsets that should be verified.
• Purchase Tax: If one party purchases the other's share, there may be purchase tax liability, but exceptions exist for family transactions.
• Registration and Land Registry Fees: Any change of ownership requires an update to the land registry (Tabu), accompanied by registration fees.
• Brokerage Commissions: If a broker is used, a commission of 1–2% of the apartment's value is standard.

Early legal and accounting consultation can save thousands of shekels in tax liabilities.

Mortgages and Financial Obligations

If the apartment is mortgaged, divorce raises critical questions:

• Who Will Remain as Borrower? The bank typically will not foreclose a mortgage due to divorce unless it is repaid or replaced with another borrower.
• Who Pays the Monthly Payment? If one party remains in the apartment, they typically pay the mortgage, but this must be explicitly stated in the agreement.
• Guarantees and Liability: If both parties signed the mortgage, both may remain liable for repayment even if only one resides in the apartment.
• Updating the Mortgage Agreement: If one party is removed from the loan, an application must be submitted to the bank and the mortgage agreement updated.

Comparative Table: Apartment Division Scenarios in Divorce

Note: Each situation is unique. The table above presents common scenarios. Personal legal consultation is essential for determining the best course of action for you.