Selling House in Divorce: Divorce Court Considerations

Emotions can be high in a divorce. Chances are that someone at some time wants to throw the kitchen sink at the other. The reality is, eventually emotions subside and we all become adults once again.

When it comes to divorce proceedings, the courts usually guide us to being adults faster than we are ready. Keep that kitchen sink intact because if you have to sell, you want top dollar. Plus, you don’t want you ex spouse to claim you damaged the property and have your portion garnished for the momentarily emotionally gratifying deed.

So, who gets the house in a divorce?

Sometimes it isn’t feasible for anyone to get the house in the divorce. Other times one spouse will buy another out based on agreement or court order. We’ve even heard of a few instances where the child gets the house and the parents go back and forth depending on their custody schedule.

Often the house will get sold per divorce court settlements and the proceeds split per the final divorce judgment.

Selecting the Realtor in the Divorce Sale

Choose a realtor that is prepared to handle a divorce sale. Don’t choose a friend because they will hold some level of bias. You need a real estate agent who understands divorce court, how proceedings and asset division work.

According to Grace Neiman of Keller Williams, “Ask your divorce attorney for a realtor who specializes in divorce. It’s a sensitive subject and you need someone who understands this is more than just selling a home. It’s releasing a lifetime together: memories, hopes and dreams. But it’s more than that. It’s a division of assets through a lot of emotions. It’s hard.”

Agreeing to Sell and Split Proceeds in Divorce

One of the common ways to split assets in a divorce, especially a house, is to put it on the market, sell it and split any equity equally among the two of you. This is common especially if there aren’t children involved. It simplifies things by eliminating a pending mortgage and if you can sell quickly, expedites the process. That being said, if the housing market is slow, this could drag things on longer than desired.

Talk to a realtor. Get an honest assessment for the home before you do anything. Find out what the current market is like and get estimated projections. Think about the return on investment for any upgrades or potential work.

Negotiate the realtor fees if possible to keep net profits as high as possible. Perform a comprehensive market analysis so you have reasonable expectations of the process and the sale. If you’re looking to move quickly but the market is slow, you might need to price the home accordingly.

Some common questions to consider when selling the house in divorce and splitting the proceeds:

Does the house need work before it is ready to sell?

It might be hard for both parties to agree what work needs to be done. One party might not want to invest any more money into the house, fearful that it will eat into the payout proceeds. Decisions need to be made, ideally in writing and implemented.

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Will one spouse continue to live in the home?

If one spouse remains in the home during divorce pending the sale will that one person being responsible for all upkeep and mortgage payments? Put everything in writing and even talk to your attorney about it before agreeing to anything.

Who is responsible for open house and sale preparations?

Real estate agents are not responsible for open houses. This means someone has to go to the house, clean it and get it ready for presentation. If one spouse is still living there, this is usually his or her responsibility. But if neither are still in the home, it might be easier to hire a cleaning crew to prepare the home for open houses and viewings.

The bottom line is you don’t want to ruin your chances of getting the most out of the home sale in divorce by not getting the property prepared. Money buys more than pride. Put your differences aside and get the house ready for sale.

House Buyout at Divorce: One Spouse Keeps the Pad

This option is more common when children are involved to keep a stable environment and consistency. It is a viable option in any divorce if parties agree. In a house buyout, you decide to buy the house from your ex-husband. He will agree to quit his interest in the property by completing a quitclaim deed. For his part, you agree to assume the mortgage and buy him out of his equity; he holds a divorce lien until paid off.

To buy him out of the mortgage, you need to contact the lender and explain the divorce scenario and request an assumption of the loan. Lenders will more than likely underwrite you as an individual to make sure you can afford the house on your own. Make sure you document all income you have, including spousal support.

If the lender won’t let you assume the loan, you need to apply for a refinance. If interest rates are lower, this might not be a bad scenario anyway. Again, this is a loan application. Meet all income and debt obligations to qualify.

Can I Pay My Spouse Off Over Time After the Divorce?

A house buyout at divorce is possible to do self-financing between your spouse and yourself. This usually requires a good relationship between the two parties. For your part, it’s co-owning the house with your spouse per completion of a purchase agreement.

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Are There Risks to a House Buyout During Divorce?

Risks to a house buyout in divorce usually have to do with appreciate and depreciation values. If the one spouse is buying the property from the other spouse, there may be the spouse getting the bad end of the deal may feel slighted. It can also be a financial burden for the spouse financing the property since it will affect the ability to obtain a mortgage for another home.

Can I Be Forced to Sell My House in A Divorce?

In divorce proceedings, if you and your ex cannot otherwise split all assets to account for the value and equity of the home, the court can order you to sell. The proceeds are then divided or debts are paid off per the court order in the divorce settlement agreement. The forcing of the sale in divorce can still potentially happen even if one spouse isn’t on the mortgage.

Prepare When Selling House in Divorce

Someone needs to prepare the home for sale. If there is a lot of tension in the divorce, this might not be something to agree to do together. But do your best as a couple to clean up the house and make it presentable for sale. If your best is agreeing that one person is responsible or that both will chip in to hire a cleaning crew, then so be it.

Remember you both have a stake in the successful sale. De-clutter and make it look like a happy family lives there. Continue to mow the grass and weed the flowerbed. If you’re doing it together don’t be surprised if he tackles that honey-do-list he just hasn’t had the time for. Consider it bonus antagonism in your divorce settlement.

You’ll scratch your head wondering why he was incapable of doing it before and he’ll know you just increased your sale value. Funny how you can win that way sometimes.

The Next House After Divorce Court

If you are selling the marital house and want to buy a new house, make sure to coordinate things with your realtor to ensure you time the purchase properly. Divorces get hung up in court and house sales get hung up for a million reasons. You don’t want to be tied into a new home mortgage when other components fall apart.

Being stuck with two mortgages or a home that didn’t sell for as much as you hoped along with legal fees is not a fresh start. Double check everything with realtors and divorce attorneys to ensure you have everything properly mapped out.

Be honest with lenders and start the process early. While you need to be prepared, don’t lock any rates in before you are really ready to pull the trigger. Constantly running credit for new approvals can hurt credit scores.

Final Thoughts About Who Gets the House in Divorce

Who gets the house in divorce is based on property division laws, how well you and your spouse can agree to terms and what the market will warrant if you sell. Remember that you are taking the first step to a fresh start with the rest of your life. Even if you have to sell the house against your wishes, you can use the proceeds to settle into a whole new you.

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