As you navigate the legal complexities around the dissolution of your marriage, questions about dividing up assets inevitably arise. One concern that often comes up is whether the court can force you to sell your house. Spoiler it might not be the answer you wanted…
The short answer is yes, under certain circumstances, the court does have the authority to order the sale of the marital home. However, the court will only take such an extreme measure under specific conditions, such as if selling the home is the only way to achieve an equitable distribution of assets or if keeping the home is not financially feasible for either spouse.
Before you panic about losing your house, understand your rights and the factors the court will consider. With the help of your attorney, you can make the case for an outcome that is fair and allows you to keep your home.
Understanding How Property Division Works in Divorce
In a divorce, the court will determine how to divide property and assets between spouses. This includes deciding what happens to the marital home. The court cannot force you to sell your house outright, but they can order you to sell it under certain circumstances.
When a Sale May Be Ordered
- If the home’s value is substantially more than other marital assets and selling it is the only way to achieve an equitable distribution.
- If neither spouse can afford to maintain the home on their own, the court may determine a sale is necessary.
- If the spouses cannot agree on who will keep the home, the court may order it sold and the proceeds split.
Alternatives to Sale
There are options other than selling. The court could:
(1) Award the home to one spouse in exchange for their share of other assets. The spouse keeping the home is responsible for paying the mortgage and upkeep.
(2) Order the home sold at a later date, giving one spouse time to refinance the mortgage in their own name or buy out the other spouse’s share.
(3) Allow one spouse to stay in the home temporarily until other arrangements can be made. The departing spouse would receive their share of the equity at the time of move out.
In summary, while a court has the authority to order the sale of a marital home in some situations, they will usually only do so as a last resort. There are several alternatives the court may consider first to avoid forcing a sale if at all possible. But if a sale cannot be avoided, the court will ensure it is handled in a fair and equitable manner.
When Courts Can Force the Sale of a House After Divorce
In some divorce cases, the court may order the sale of the marital home and the division of proceeds between spouses. This usually occurs when:
Neither spouse can afford the home on their own
If neither party can afford the mortgage, taxes, and upkeep of the home on their own income, the court may determine that selling the property and splitting the proceeds is the only viable option.
One spouse wants their share of the equity
If one spouse contributed to the down payment or mortgage payments on the home, they may want their fair share of the accrued equity in the event of a divorce. The court can order the sale of the house so each party receives their portion of the proceeds.
The spouses cannot agree on who retains the home
If spouses cannot come to an agreement on who keeps the marital home through mediation or settlement, the court may make that decision for them by ordering the property to be sold. This ensures neither party gains an unfair financial advantage from retaining or obtaining the home.
Additional reasons a court may order the sale of a house after a divorce include: if one spouse needs their share of equity to pay off other marital debts or obligations; if major repairs or renovations are needed that neither party can afford alone; or if the mortgage is underwater, in which case selling may make more financial sense for both parties.
In summary, courts aim to make fair and equitable divisions of marital property. While forcing the sale of the family home is not ideal, it may at times be necessary to achieve a just outcome for both spouses in a divorce.
Fighting a Forced House Sale: Strategies That Can Help
If facing a forced house sale after divorce, there are a few strategies that may help.
Negotiate with Your Ex-Spouse
The most direct approach is to try negotiating with your ex-spouse to sell the house on your own terms, perhaps giving you the option to buy out their share so you can keep the property. Come prepared with a fair offer based on the home’s market value and terms you can both agree on. Be willing to compromise to reach an agreement that satisfies you both.
Challenge the Court Order
You may be able to challenge a court order forcing the sale of your home. File a motion objecting to the sale, providing evidence that the order is unfair or unnecessary. For example, if the home has been in your family for generations or selling it would cause major financial hardship.
The court may be willing to consider modifying or reversing its original decision, especially if circumstances have changed. You will need to show how the forced sale disadvantages you and propose an alternative, like buying out your ex-spouse’s share of the equity.
Ask For More Time
If needing more time to buy out your ex-spouse or make other living arrangements, ask the court to temporarily delay enforcing the sale. Provide a concrete plan for resolving the situation within 6-12 months. The court may grant a continuance, giving you a chance to get your finances in order or find a new place to live before having to sell.
Use the additional time productively to pursue other options for keeping your home.
Sell and Buy Back
As a last resort, you may have no choice but to sell the home as ordered. However, once sold, you could potentially buy the property back from the new owners, re-establishing the home as solely yours.
Make sure any offer you submit is competitive, and be prepared to go through the entire homebuying process again. Buying back the home you already own is not ideal but can be better than losing it altogether.
In conclusion, while a court does have the authority to order the sale of marital assets like a house after a divorce, the reality is they will only do so as an absolute last resort.
The court’s goal is to achieve an equitable division of assets, not to cause undue hardship. They would much rather see couples work together in good faith to find an agreement that suits both parties. However, if cooperation proves impossible, the court will step in to ensure a fair outcome.
The bottom line is that the odds of a court forcing the sale of a house are low if you go into the divorce process with a willingness to negotiate and compromise. Stay calm, think of the big picture, and try to make decisions that you can live with for years to come.
With time and perspective, you may find that what once seemed an impossible situation resolves into something you can accept.