What Happens to My House During a Divorce?
Property division in an Arkansas divorce sounds so simple, at first. The court attempts to reach an equitable (fair) solution. A 50/50 split sounds like a really good way to do it, until you try to buy or sell one-half of your house. The stress, uncertainty, and emotional attachment to a family home can make it a major concern at a very bad time. However, an experienced family law attorney can help you through the process of selling or keeping your home while moving your case forward
Can I Sell My House During the Divorce?
What happens to the family home can be a major source of divorce conflict. Often, it is the most valuable asset a couple has and there may be strong emotional attachment. Deciding what to do with the home depends on your need before, during and after your case is over.
Many people want to keep their home but can’t afford the mortgage on one income. One of you might want to take over the mortgage and buy out the other.
When the house is sold an Arkansas court will usually split any profit or loss between the couple (unless there is good reason to not split 50/50). Sometimes you just need the payments to end quickly, while the divorce is in progress. What if you spouse won’t agree to terms or doesn’t want to sell?
Below are common questions and some information that may help. Even better, schedule a free consultation with a family law attorney here (Hyperlink) to discuss your home.
Why Can’t I?
Often, a domestic relations order is filed when your case begins.
The order prevents each person from doing several things, like harassing each other or selling property, including the martial home. But you can ask the court to approve a property sale before the case is over and you may have very good reasons. For example, avoiding foreclosure or the need for living expenses and the cost of your case.
The “easiest” way to sell is a Consent Order (written agreement approved by the judge). These agreements must address several facts, time requirements and legal issues. Effective legal representation is critical.
The last thing you need is a divorce prolonged by a real estate dispute. Also, nobody wants a return to court after the divorce is final, to fight about a house.
If you need consent to sell before your case is finished, discuss it with your family law attorney. Together, you can discuss your concerns, interests and work up a proposed agreement for the other side to consider. A generic form agreement might look good for this task, but there are many things to consider and a few are listed below.
Yes, this list is long. No, it does not cover everything.
Things to Consider When Selling Your House
Who picks the real estate agent? One of you, both of you, a third party? Can or should you use a family friend? Do you make a list of agents and throw darts? What if you can’t agree on an agent?
What is the asking price? Is there a minimum acceptable price? Is there a price that will trigger an automatic acceptance without further negotiation? Will you go with the realtor’s suggested price points? Will you use an appraiser? Will you use more than one?
What if the house doesn’t sell? How long will it stay on the market before the price is lowered? Now, how is the new price determined? Will you try to agree, take the realtor’s advice, ask Alexa or search Zillow.com?
Which of you will work with the realtor? How much information and decision making will the other spouse have? Did you agree on how the profit will be split?
Arkansas law expects a fair (equitable) split, but it is much easier for one side to take an extra $20,000 from the house sale than to cut $20,000 out a small business.
If the house sells before your case is over, will the money go into an attorney trust account (which attorney?) or will it be deposited with the court?
I think we all get the point – you can sell your house before the case is over. However, it can be as simple or as complex as you and your spouse make it.
Now consider what happens if one spouse wants to keep the house and buy out the other? Many of the same questions apply and there are plenty of new ones.
What If We Don’t Have Any Home Equity?
If you owe more on your house than it is worth, there is a marital debt that must be settled. One of you may want to keep the house. How will you reach a buyout agreement now? If you are both walking away, do you have other assets to offset the debt?
Can I Force a Sale of the House If My Spouse Won’t Agree?
Maybe. But the facts of your case will determine if that is necessary or possible. Your attorney can lead you through the process.
Can the Judge Order the Sale of Our House?
Yes, but you should avoid reaching that point, if possible. Talk to your lawyer and take their advice.
If you own your home and anticipate or are going through a divorce, our family law attorneys can help you figure out how and when to divide your real estate. As we covered above, there are many questions and each case is unique. Please contact us for a free consultation to consider your next move.