When couples decide it's time to divorce in California, their marital home is usually the most crucial asset to distribute in the divorce settlement. Frequently, spouses ask us if they can remain living in the house, keep ownership, or have to sell it? Since the issue of selling or keeping your home in a divorce is such a crucial financial issue in any separation, you need to take the necessary time to understand your options.
One of the first steps to a better understanding is to consult with an experienced California divorce lawyer who can explain your options to protect valuable assets. If you and your spouse purchased the house as a married couple, it is considered “community property” in the state of California. This means that if you get divorced, the house's value will be divided 50/50 between the spouses, but there are some options you need to know.
For example, your options for keeping or selling the marital house will always depend on your ability to negotiate and reach a mutual agreement with your spouse. What does that look like? Well, it could mean you sell the house and split the profits evenly with your spouse.
However, in most cases, one spouse wants to keep the home and continue living there. They have nowhere to go and are emotionally attached. This is where their kids grew up. Thus, many couples will find a way to agree where one spouse purchases the other's house share. Our Los Angeles divorce and family law lawyers will review some options below.
Can I Make an Agreement with My Spouse to Sell the Family Home?
Yes. When couples divorce, the division of marital property is often a tricky part of the process. Specifically, reaching an agreement over the family home is frequently a significant hurdle and a hotly debated topic. We are often asked; Can I sell my family home if I'm getting a divorce in California? The most straightforward answer is not necessarily as rules could make it difficult.
When you file a divorce petition or are served with divorce papers, family law restraining orders are issued that say neither spouse can't sell or transfer the family house. Simply put, you can only sell the home if there is a written agreement. If you can reach a mutual agreement with your spouse to sell the house, you can put the terms of the sale in a contract and have the court approve it.
California family court judges will examine the document to ensure no disagreements arise during the selling process. This is a formal legal agreement, and there are numerous issues to consider when you place your family home on the market. Some of the terms that should be listed in the agreement should include the following:
- Setting the price of the home;
- What dollar amounts would be considered;
- How long on the market before a price reduction would be considered;
- Selection of a real estate agent;
- Which spouse will have the primary duty of communicating with the agent;
- Who is responsible for maintaining the home while on the market;
- Review of offers and submitting counteroffers;
- Acceptance of a bid to sell the home;
- Any liens that need to be handled on the home;
- Any reimbursement claims by either spouse;
- How the mortgage will be paid off after the sale;
- How the proceeds of the family home sale will be divided?
Spouses need to make an effort to remain on friendly terms during the home sale, which can reduce stress and make the entire process easier. If you cannot persuade your spouse to sell the family home, you might be able to obtain a court order without their consent if the sale is financially necessary.
A California family court might consider issuing an order to sell the home if it is close to foreclosure, or one spouse needs the sale proceeds to pay for costs related to the divorce. However, you need to understand that obtaining a court order to sell the family home without the other spouse's approval will require significant evidence supporting the sale on these terms.
Can the Family Court Order the Sale of the Family Home?
Yes. If spouses cannot agree on how to handle the family house, the family court can order you to sell it using “stipulation and order to sell.” Both spouses are legally bound by the court's terms and could face sanctions if the home is not sold.
As you can see from this information, it's always a better option to find a way to agree with your spouse on what to do with your family home and keep the family court out of your business. They don't care. They have no emotional attachment. They are only seeking equal division of property. Don't force a judge to decide for you as it might now turn out as expected.
You have options to reach a solution, such as mediation and collaborative divorce. All family law courts in California will only get involved when no agreement can be achieved. In a situation where the court orders the sale of the home, it's still an agreement between spouses where the divorce lawyer will present the agreement to the court before it formally orders the sale.
One of the most common reasons a family law court will order a home sale request is when one spouse needs money for attorney fees or the home is at risk of going into foreclosure. While it might be possible to sell the home while the divorce is pending, the court will usually order it to be sold once it is complete.
Can I Buyout My Spouse and Keep the Family Home?
Yes. A “buyout” usually involves one spouse buying the home from the other privately without ever placing the house on the market. When one spouse buys the other out in California, there are several ways to complete the sale.
For example, rather than selling the home for cash, the spouse who wants to keep the family home could offer other property and assets. This could include family vehicles, jewelry, stocks, or even retirement benefits. Further, spouses could agree to buy the family home from the other through spousal support payments or paying their divorce lawyer fees.
After the family law court orders the buyout, which must be written and signed by both spouses, the actual process usually includes the following steps:
- Choosing a neutral appraiser to determine the value of the house;
- An agreement one spouse is buying their share of the home;
- An agreement on the value of buyout, equities, and liabilities;
The appraisal determines the fair market value for the house by subtracting the mortgage and any liens. Spouses can agree on a buyout number, and their divorce attorney can arrange to receive the payment.
Should I Move Out of the Family Home While the Divorce is Pending?
It depends. Every divorce is unique, and moving out of the family house might be necessary or in the best interest of your children. You need to understand that moving out of the family home while your divorce is in progress has no legal implications on what will happen to the house in the final divorce decree.
In other words, if you decide to move out, you are not forfeiting your community property rights in the home, but this is not to suggest it's a wise decision to move out immediately after the decision to get a divorce.
If you leave home voluntarily right away, you might be creating new issues separate from the division of property in a divorce. For instance, your spouse could make claims to the court that you abandoned your family, which can potentially impact decisions that have to be made later.
Retain a Family Law Lawyer for Help with the Divorce Process
If you are getting a divorce in California, you will have to make crucial decisions on dividing the community property, including the family home. This is often a complex and sensitive subject as there could be strong emotional attachments to the home, or there are significant financial issues to be considered, such as taxes and mortgage liabilities.
Keeping the family home has its own set of issues to consider, such as reaching the difficult decision on the buyout amount and giving your spouse other property. When you retain an experienced California divorce attorney, you will have an advocate on your side with your best interest in mind.
They can protect your legal rights and handle the negotiations with your spouse for the best possible outcome. Contact our California Certified Family Law Specialists for a free consultation to review the details of your case and legal options.
Furman & Zavatsky are located in Los Angeles County and represent people across Southern California. Contact our law firm at (818) 528-3471, or fill out our contact form.