Dividing marital property can be one of the most challenging aspects of the divorce process. Figuring out what to do with the family home is perhaps the biggest challenge of all. You may find that you want to keep the family home, but your spouse would rather sell it. Do you have to sell the family home if you’re getting a divorce in California? Not necessarily. While selling may be the easiest way to divide the asset, it is not your only choice. In fact, you have a few options when making a decision about the fate of your home.
Selling the Family Home
Divorcing spouses in California are generally entitled to an equal share of all community property. Dividing assets evenly can be challenging, especially when trying to figure out what to do with large-ticket items like the family home. One solution is to put the family home on the market and split the proceeds. Selling the family home during a divorce can be a bit tricky. Certain rules and limitations can make the process a challenge. It will be important to get the help of an attorney to make sure that the asset is sold properly.
Agreeing to Sell the Home
When you file the divorce petition or are served with divorce papers, a certain family law restraining orders are issued. Among other things, this order prevents you or your spouse from unilaterally selling the family home. Under this order, you and your spouse can only sell if there is a written agreement and order.
If both you and your spouse agree to sell the home you can do so if you stipulate (agree) to the terms and have a court sign off. Putting this formal agreement together will require you and your spouse to go over various issues that may arise when your home is put on the market. When a judge reviews your written agreement, they will look to see that all of the bases are covered and that no disagreements are likely to surface during a sale. Terms that will be important to discuss and agree upon include:
- How the real estate agent is chosen
- How the price will be set
- Whether a specific dollar amount will automatically trigger an acceptance
- When and how the price will be reduced, if necessary
- The process for reviewing offers, submitting counters, and accepting a bid
- Which spouse will primarily communicate with the agent
- Which spouse will be responsible for maintaining the home during the sale process
- How liens and/or mortgages will be paid off, and
- How sale proceeds will be divided.
Spouses should take the time to think about all of the potential issues that may arise during a sale and try to come up with mutually-agreeable solutions.
One Spouse Wants to Sell Before Trial
In most cases, if you want to sell your family home before trial you’ll have to get your spouse on board and sign a written agreement. If you can’t convince your spouse to agree to a sale, you may still be able to secure a court order without their consent if a sale is necessary for financial security. Courts may agree to issue an order to sell the home at one spouse’s request if:
- The home is threatened by foreclosure, or
- A spouse needs the proceeds of the sale to pay for legal costs and fees related to the divorce.
If you want to get the court’s permission (and order) to sell your home, you’ll have to present substantial evidence to support one of these grounds.
Court Order to Sell After Trial
If spouses can’t agree about what to do with the family home, the court can issue an order to sell. If there is no rush to sell, the court will wait until the end of the case to order the sale. Spouses will be legally bound by the terms of the court’s order and can face penalties for not selling the home. In order to keep the power to make decisions about your assets, it is in your best interest to try to work out a solution with your spouse. Tools like mediation and collaborative divorce can be extremely helpful in finding mutually-agreeable resolutions. Courts will only intervene when it is clear that no agreement will be made.
Keeping the Family Home
What happens if you really don’t want to sell the family home? For many, this is one of the biggest challenges in a divorce. Even though you and your spouse may be splitting up, your family’s home is still where you live. It’s still where your kids live. In some cases, it may even be where you grew up. Selling is not the only option. If you can get your spouse on board, you may be able to keep the home.
The buyout process allows you to “buy out” your spouse’s share of the family home. You’ll have to get your spouse to agree to the buyout and terms of the sale. The buyout process is similar to that of selling the home to a third party, but allows you to skip many of the time-consuming and costly aspects of a traditional sale. In most cases, the buyout process will look something like this:
- Spouses agree that the family home should be classified as community property.
- Spouse A agrees to allow Spouse B to buy out his/her share of the home.
- A neutral appraiser is selected to determine the value of the home.
- Value, equity, and liabilities are established.
- Spouses agree on the value of the buyout (what Spouse B will have to pay Spouse A for his/her share of the home).
When the value of the buyout is determined, Spouse B will have to compensate Spouse A for that amount. This buyout can be done with cash, offset by other assets, or a combination of both. For example, let’s say that the buyout value is set at $100,000. Spouse B proposes to give Spouse A $50,000 in cash and offset the remaining value by giving up the right to community property valued at $50,000 (e.g., family car, stocks and bonds, retirement benefits). When the spouses can agree on a buyout solution they will put the terms on paper, sign the stipulation, and submit to the court for approval.
Consult an Experienced Los Angeles Divorce Attorney
If you’re getting a divorce you’ll have to make important decisions about how to split up property that is owned by you and your spouse. What to do with the family home is often a difficult and sensitive subject. It is important to understand that the family home is a complex asset that can have substantial legal issues. A sale may require you to deal with complex tax issues, resolve liens and mortgage liabilities, and determine how proceeds should be allocated. If you want to keep your home, you may have to give up other pieces of property, assume liabilities, and be prepared to pay home-related taxes and fees.
Hiring an experienced Los Angeles divorce attorney to help you divide your marital assets will help to make the process less overwhelming. At Fernandez & Karney, our divorce attorneys will fight to get the result you want in your divorce. If you want to keep your family home, we will do everything in our power to keep it in your hands. If you’d prefer to sell and walk away with cash, we will negotiate with your spouse and find an agreeable solution. Call our Certified Family Law Specialists today to request a free consultation. We will review your case, explain your options, and answer the questions you have.