A divorce is often followed by both spouses feeling uncertain about the future and the state of their affairs. The division of property is often one of the most complicated matters in any divorce. You or your spouse may be wondering if you will be forced to move out of your home or if the sale of your home can be avoided.
How the State Defines Property
The state recognizes two different types of property: marital property and separate property. Using a community property division model, the court will work to equally distribute all marital property 50/50 between each spouse.
Marital Property: This is all the property that was purchased by the couple during their marriage. There are no exceptions given to who bought the property, who used the property more, or what the property was used for.
Separate Property: This is property that belongs only to one spouse. This includes all the property that each individual spouse owned or purchased before the marriage. For example, if one spouse purchased a home prior to the marriage, that home would remain solely theirs. This also includes anything inherited by one spouse or gifted to them outside of the marriage.
Mandatory Home Sales
Dividing marital assets can create tension between the couple. They may not always be able to come to an agreement on who gets which assets and how their property will be divided. In circumstances like this, the court can intervene in the sale of the family home.
Usually, the sale of the family home can only occur before trial if there is a written agreement between the two spouses. However, if one spouse can prove that they need to sell the home due to financial insecurity, then they may be able to secure a court order for the sale of the home. However, this is no easy process, and substantial evidence will need to be provided to the court to facilitate this agreement.
Some evidence that could be provided to facilitate the sale of your home without the permission of your spouse can include the following:
- The need to use the money from the sale of the house to cover any court costs
- Providing evidence that the home is in danger of foreclosure
Complications in Marital Property vs. Separate Property
The court sees marital property as property that is purchased during the marriage. This includes the purchase of a home. Matters of marital property become more complicated when the house was either purchased or inherited by one spouse before the marriage. In these cases, the home may only be in the name of one spouse. However, if the other spouse can prove that they have contributed to expenses involving the house, such as the mortgage, then there may be a chance that the court could recognize the home as a shared home. Typically, this type of case is found in long marriages.
Resolving Disagreements Over Selling the Home
There are a few things that could happen if one spouse wants to sell the family home and the other does not.
Physically Trading Property: This alternative allows a couple to have all their marital property appraised. They are then able to divide up their property at an equal value. In this case, one spouse may get the house while the other gets the furniture, cars, and jewelry to equal the same value.
Financial Trade: If one spouse wants to keep the house and the other does not, they have the option of paying 50% of the cost of the home to the other spouse. If the house is worth $400,000, then one spouse would pay the other $200,000 to keep it.
A: If you are interested in keeping your home after a divorce, there must be a written agreement between you and your spouse. An experienced family law attorney can help you through this process. One option you may have to avoid a forced home sale is to purchase half of the value of the property from your spouse. In situations where you and your spouse cannot agree, the court may order the house to be sold to create an equal distribution of property.
A: A house sale can be forced if the married couple cannot reach an agreement, one spouse lacks the financial means to purchase half of the property from the other, or one spouse can convince the court to order a forced home sale due to financial insecurity.
A: Due to California’s community property division model, a home purchased during a marriage belongs equally to both spouses. Therefore, without a written agreement, one spouse cannot sell the home without permission. However, if the court is provided with substantial evidence by one spouse of the need for financial security through the sale of the home, they may grant one spouse the ability to sell the home without the permission of the other spouse.
A: In California, neither spouse has a greater right to sell the family home than the other. Therefore, whether husband or wife, the sale of the home must either be agreed to in writing by both spouses or be court mandated. The only time there might be an exception to this rule is if the house is only in one name, was purchased or inherited before the marriage, or if one spouse proves to the court the need for sale due to financial insecurity.
Our Lawyers Are Here to Help
Divorce is one of the most stressful situations in life, which is why our team at the Law Offices of Michelanne Hrubic is here to help. We will assist you in navigating through your divorce so that you can gain a new start in life and leave the past behind. Call us today.