The trial court stated that it would divide the marital property 60/40 in favor of the wife. The husband had argued that there were errors in calculating this result. One of those errors was that the court had included closing costs.

The trial court had reduced the net equity value of the marital home by 10%. From $813,000 to $731,700. Because of the costs of a theoretical sale. Husband argued that no sale had been made necessary by the judgment for dissolution entered. Therefore, closing costs should not have been included.

Husband appealed. The Appellate Court agreed with him.

A court should take into consideration tax consequences resulting from the sale of the property. If it is made necessary by the court’s judgment in a dissolution case. The court should not speculate as to the existence and amount of future tax liabilities. When no such sale is contemplated by the parties or required by the court’s division of property.

There is no evidence in the record that WIFE intended to sell the home. There was nothing in the judgment requiring her to do so.

The wife was still living in the marital home. We believe the trial court’s comments on this issue indicate that it was reducing the value of the home so as to avoid a sale. As opposed to reducing the value of the house by the costs of a sale that was required by the judgment.

We find it was improper for the trial court to consider speculative tax implications. From a hypothetical sale of the marital home to reduce the valuation of the home.

We find that the trial court’s erroneous reduction of the value of the marital home resulted in the undervaluation of the marital home by $81,300. Based on the trial court’s 60/40 division of property, we find that husband was deprived of 40% of $81,300, or $32,500.

We remand this matter to the trial court. With directions to order wife to reimburse husband $32,500. As a result of the erroneous reduction in the value of the marital home.

In re Marriage of Benkendorf, 624 N.E.2d 1241.

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