Getting an Order to Sell the House
How and when does the court order the home's sale?
How to get an order to sell the home
Next to child custody and support issues, what causes spouses the most amount of stress in a divorce? The answer is usually the family residence. The home can truly be a castle but when spouses go to war in a divorce, the castle may feel under invasion.
It really does not have to be that way and dealing with the family residence should be one of the more simple aspects of any divorce case. There are many options available to spouses when it comes to the family residence.
Spouses can agree to a buyout. The spouses may agree to sell the property. The spouses may agree to offset the community property interest with another asset.
In this page we will discuss the sale of the family residence. We will discuss it within the context of two hypothetical situations. The first is by agreement and the second is when there is a disagreement.
Spouses can agree to sell a home in a divorce
If the spouses agree to sell the property, the lawyers can get together and draft a reasonable stipulation and order if the divorce is still pending or a judgment if the divorce is at its end. Usually if spouses have agreed to sell the property, it is because neither one of them want to buy out the other or neither one of them can afford to do so.
What does a typical settlement to sell the home during a divorce look like?
A typical settlement on sale of the marital residence includes terms regarding picking a real estate professional to sell it, mandates the spouses cooperate in the sale process including the listing, showing and marketing of the property, states if appropriate what the sale price will be or possibly what the initial listing price will be and will set forth how the proceeds will be distributed.
The distribution of the proceeds should include payment of the cost of sale including commission, escrow fees, any debts or liabilities that need to be paid and of course distribution to the spouses.
But what happens when the family residence is partially the separate property of one spouse?
It does not have to hold up a sale because the spouses can simply agree to an unequal distribution.
What happens if the house needs repairs before it can be properly listed for sale?
The settlement agreement can state spouses must agree to repairs and their cost before either commits to the repairs.
What happens if the spouses do not agree to the sale of the home in the divorce?
That brings us to the second hypothetical - a situation where spouses do not agree to the sale.
There are so many reasons the spouses may disagree. These may be disputes regarding community versus separate property interest, disputes regarding the home's value and even an emotional attachment to the house where one spouse simply does not want to sell the house.
If the issue ends up in front of the court, the court has some discretion in how to handle it. The more common approach is to order the sale of the home and everything we wrote above regarding the terms may be terms the court orders.
What about situations where the home is in default during the divorce?
In situations where the house is in default, the court does not have to wait until the end of the divorce to order its sale. If a house in default is under risk of foreclosure and there is equity to be distributed that will be lost if foreclosure occurs, either spouse can ask the court for an order to sell the house while the divorce is pending.
The California Family Code gives the court discretion to make orders to preserve and protect community property and sometimes a court has to do that before the end of the divorce.
Want to learn more about dividing the family residence in a divorce?
We provide you with links to additional reading, below.