Can One Spouse Force the Sale of the Marital Home During Divorce Proceedings?

The American dream historically includes getting married and purchasing your home, white picket fence and all.  However, home purchases have evolved over the years to include condominiums, townhouses, single-family homes, multi-use dwellings, and more.  Some purchases are for investment while others are for long-term living. No matter where you land on the spectrum, if you and your spouse own a home that was purchased during the marriage, then it is most likely marital property that will be considered an asset, with a possible liability (such as a mortgage or lien) that needs to be allocated one way or another in divorce proceedings. Over my twenty years of experience in the family law field, handling simple and complex divorce cases, one thing must always be taken into consideration – the home.

Court-Ordered Sale vs. Buyout

So, what are your options when a divorce action is underway? Obviously, the parties can agree to the sale of the residence and related terms, such as the fair market value, selecting a realtor, and a realistic timeline for the sale. An experienced family law attorney will encourage you to escrow any net proceeds from the sale of a marital residence until such a time as an agreement is reached between the parties and legal counsel, with or without court intervention. If agreements cannot be reached, then one of the options is to formally request that the court order the sale of the residence and aid in setting the terms and parameters of the sale. This usually requires a family law attorney to draft and file a motion with the court to commence the legal process leading up to the court-ordered sale. Another option that many consider is the buyout of the other party from the residence. This typically occurs in conjunction with a refinance of the residence into one party’s name, taking sole responsibility for the property going forward. This requires the legal experience of these transactions in conjunction with the drafting of an order, marital settlement agreement, or entry of a judgment for dissolution of marriage.

Key Factors In Court-Ordered Sales

Some of the factors that the court will consider in forced sales are whether or not one party or the entirety of the marital estate will allow, financially, for a buyout and/or refinance. This will take into consideration the fair market value of the marital residence less any financial obligations incurred in relation to the residence, such as a mortgage. If that is not a possibility, also considering factors like respective incomes, non-marital assets, gifts, loans, and other finances, then a court-ordered sale is likely to occur.

Timing Issues During Pending Divorce Proceedings

At the onset of a divorce case, I have clients commence the compilation of financial records and completion of a Financial Affidavit, with our years of expertise and guidance through this sometimes tedious process. This allows us to manage and set realistic expectations regarding whether a buyout is possible or a sale is inevitable.

Impact on Children, Families, Renters, and Occupancy Rights

Obviously, 20 plus years of legal experience in the family law field has allowed us to witness, guide, and help clients through the difficult process of home transition or retention. The impact on a family, their children, and any third party (sometimes an elderly parent or renter) can be difficult to navigate. If you have questions regarding the marital residence and your rights, reach out to us for an initial consultation.