While it’s much more common for a home to be sold after the divorce is finalized, there are instances during which it will be on the market before then. In some cases the judge may order the home be put on the market while the details of the divorce are still being hammered out.
It’s not even unheard of for the home to already be on the market when one spouse serves the other spouse with divorce papers.
When will a judge force the sale of a home?
There are two times when it’s likely to happen. During the division of assets, when the judge may force the sale of the home to make dividing the assets easier. This would happen at the end of the process.
But if the judge forces the sale before the process is finalized it’s usually because the home is rapidly losing value. Maybe one spouse is deliberately trashing the home with a deliberate eye towards devaluing it. (Keep in mind this dirty trick is likely to backfire, and may even get the spouse in question charged with criminal mischief).
More commonly, the spouse responsible for paying for the home ends up in some sort of financial distress. The home teeters on the edge of foreclosure, at which point it becomes far more of a liability than an asset. Quickly selling off the home and dealing with either the deficiency balance or whatever sales proceeds don’t go to the bank becomes the best way to protect the interests of both spouses.
If we’re already selling, what provisions should we make in our separation agreement?
If you’ve read other articles on our blog you know we recommend a formal separation agreement whenever you and your spouse separate, something to help handle the major issues of breaking two households into one while you wait for the final decree.
If you follow this advice and plan on selling the home, your separation agreement should cover:
- Who is going to live in the home until it sells?
- Who is going to make the mortgage payments until it sells?
- Who is going to pay other ongoing expenses, like repairs, and utilities, until it sells?
- Who is going to pay the costs of selling the home if those costs can’t be passed on to the buyer, or deducted from the proceeds?
Once the house sells you should deposit the proceeds, if any, into an account. Neither you nor your spouse should touch that money until the division of assets is finalized, either via out-of-court settlement or via a judge’s decisions about the divorce decree.
See also: 5 Dirty Divorce Tricks Your Ex May Try.
Do you have any tips for selling the home during a divorce?
If you were attempting to sell it yourself, it’s time to switch to a Realtor. It will be one less thing to worry about, and it will ensure everything that happens with the house is above reproach.
It also gives you a neutral, professional mediator to help you make decisions about things you might otherwise argue about, like how much to list the house for, or even how much to spend on increasing its curb appeal.
If at all possible, both you and your spouse should think about vacating the home so it can be staged to move quicker.
Finally, if you don’t love the idea of selling the house, or even if you don’t want the divorce, resist the temptation to poison the deal. It will only cost you more in time and aggravation later, and it may generate displeasure in whichever judge ends up managing your divorce.
Is there anything else we should think about?
Remember if you owned the home prior to marriage and didn’t use marital funds to purchase it, it might not even be marital property. At that point it’s your sole responsibility, but also yours to sell, live in, or deal with as you see fit.
Not sure? Have a complicated situation? Be sure to tell us about it at your free consultation, the ideal place to discuss your unique divorce concerns.