Can You Sell Your House During a Divorce?

When a couple decides to divorce in California, their house is often the most important asset to distribute in the settlement. Spouses often wonder if they can stay in the house, whether they can retain ownership, or if they should sell. It is crucial to develop an understanding of your options when you are in this situation, and a trusted divorce attorney is the best tool you can use to understand your alternatives and protect your interests.

If you and your spouse bought your home as a married couple, it is considered “community property” in California. In the case of a divorce, this means that the home’s value will be divided 50/50 between the spouses. Your options for keeping or selling the home are dependent upon your ability to reach an agreement that satisfies both you and your spouse. This could mean selling the house and splitting any profit evenly, but many couples reach an agreement in which one party purchases the other’s share of the home.

Should You Move Out While the Divorce Is in Progress?

Every situation is unique, but moving out may be a viable option, as doing so has no legal impact on what happens with the house in the final divorce decree. By moving out, you will not forfeit your community property interest in the house. However, it is sometimes not wise to move out of the home right away. If you move out of the home voluntarily, complications separate from property division may arise if the divorce goes to trial. For example, it is possible for your spouse to claim that you abandoned your family, which can be difficult to disprove.

When you file a petition for divorce in California, the Standard Family Law Restraining Orders are in place and may make it complicated to sell the house while the divorce is pending. These orders keep both parties from either transferring or selling any property without a court order or the written consent of the other individual.

Can the Court Order You to Sell the Home?

The court may order you to sell your family home by means of a “stipulation and order” to sell. This is an agreement the couple reaches together, and the divorce lawyer must take the agreement to court before it can become a court order to proceed with the sale. This agreement is not something to take lightly, however, as there are many factors to consider. Some of the questions you must ask include the following:

• Is either spouse asserting any reimbursement claims?
• Does each party agree on a specific dollar amount that will be accepted to complete the sale of the house?
• Besides the mortgage, are there any encumbrances or liens that must be satisfied regarding the home?
• Will each spouse need to be included in every detail, decision, and discussion regarding the sale, or will one of the parties take on the responsibility?
• Which spouse will be responsible for ensuring the house is ready to be shown to potential buyers?
• If there are no offers at the original asking price, how will a price reduction be decided upon?
• Will the couple decide mutually on a real estate agent?
• How will you decide on the sale price?

What Is the Easiest Way to Successfully Sell the Home?

Although it is often challenging for a couple to agree on anything when they are going through a divorce, it is important to try to proceed amicably to facilitate the sale of the house. If you want things to go smoothly, it is crucial to discuss and agree upon the answers to the above questions. Unfortunately, there are circumstances that may prevent the two parties from coming to an agreement. If this is the case, it may still be possible to sell the house while the divorce is pending. This is dependent, however, on whether the court feels you have sound reasoning to continue with the sale.

One of the most common reasons the court accepts home sale requests is a scenario in which one spouse lacks the money for attorney fees and requests that the home be liquidated as a way to provide them with the funds they need for the divorce. Another reason sale is often approved is a circumstance in which the house is at risk of going into foreclosure.

If the couple is unable to agree to the terms of the sale of their family home, the court will typically order the home to be sold once the divorce is complete. In cases where there is no urgent need to sell the home and neither spouse wishes to or has the means to buy out the other, this is the most common solution.

What if You Want to Buy Your Spouse Out?

In most cases, a buyout simply entails one spouse buying the home from the other privately, with no reason to list and market the home. When one spouse buys the other out in California, there are various means of completing the sale. Instead of a cash sale, other properties and assets may become part of the equation, or the spouses may make agreements on matters such as attorney fees or spousal support.

Once the court orders the buyout, the spouses and their attorneys must first find a mutually agreeable party to appraise the home. This appraisal will determine the fair market value for the house, minus the mortgage and any liens, leaving the equity value. At this point, the spouses can agree upon a buyout figure and their respective divorce lawyers can arrange for the payment.

Hire an Attorney Who Can Guide You Through the Process

If you and your spouse are facing a divorce and have questions about your family home, a trusted San Diego family law attorney can provide you with your next steps. At Bickford, Blado, & Botros, we have the experience and knowledge to help you accurately assess the need to sell your home and how to proceed with the option that is best for you. Contact us today to see how we can help you navigate this and many other decisions.

 

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