When you work out your own divorce settlement dividing up your community assets and debts, you can decide what to do with the family home. The main options are to sell it now, give it to one spouse (who perhaps buys out the ownership interest of the other spouse), and continue to own the house together – which implies an agreement to defer sale of the family home.
Choosing to continue to own the house together is not unusual but can be problematic. A number of points should be discussed, agreed and made part of the divorce settlement including:
- Who will pay the mortgage, property tax, homeowners insurance and any homeowners’ association fees?
- Who will pay for any required routine maintenance?
- Who will pay for any required major maintenance?
- What process will be used to decide if an improvement should be done and who will pay for it?
- What will be each spouse’s rights as regards entry and usage?
- When or under what circumstances will the house be sold?
- What if one spouse later wants to sell but the other spouse doesn’t?
- How will the selling process be handled?
- How will the sale proceeds be split?
- What process will be used to resolve any disputes?
A divorce mediator can help you work out the details of such an agreement.
Asking a California Judge to Defer Sale of the Family Home
If you can’t agree and child(ren) are involved, it is possible for the spouse who wants to remain in the home with the child(ren) to ask the court to defer sale of the family home.
If the court grants such a request, it means that:
- Sale of the home will be temporarily delayed and
- Exclusive use and possession of the home will be awarded to the spouse who is a custodial parent of a child for whom there is child support.
The court must specify for how long the sale will be deferred. It will often specify the responsibilities of each spouse for paying the costs of routine maintenance and improvements to the house. The custodial parent is usually made responsible for mortgage payments, taxes and insurance.
How a Judge Decides
Before making an order deferring the sale, the judge must first determine whether it is economically feasible not only to make the required payments for the mortgage, taxes and insurance but also to maintain the current condition of the home. In determining this, the judge must consider:
- the income of the spouse who will be living in the house;
- the availability of child support and spousal support; and
- any other sources of funds to make the required payments.
If the judge determines that it is economically feasible, the court may make an order to defer sale of the family home if the court determines that the order is necessary to minimize the adverse impact of the divorce on the child. In making this determination, the judge must consider all of the following:
- how long the child has lived in the home;
- what grade the child is in in school;
- the accessibility and convenience of the home to the child’s school and other services used by the child;
- whether the home has been modified to accommodate any physical disabilities of the child;
- the emotional detriment to the child of a move to another residence;
- the extent to which the location of the home permits the resident parent to continue their employment;
- the financial ability of each parent to obtain suitable housing;
- the tax consequences to the parents;
- the economic detriment to the non-resident parent of a deferred sale; and
- any other factors the courts considers just and equitable.
Much of the information above comes from the California Judges Benchguide on Property Characterization and Division.
Related Posts and Pages:
Dividing Community Property
Community and Separate Property
Division of Assets and Debts – Basics
my wife and I are divorcing with a mediator. I want to keep house, wife wants to sell. she does not want me to stay in the house out of spite. so she says she will also want to keep the house to force a sale. can I defer sale for 5 years and stay in the house? we have enough assets to live on while keeping the house out of the divorce. or can I buy her out with the judgement that I sell house in 5 years? or try to compensate her in any other way that would be acceptable? I am emotionally not prepared to relocate out of this house because of 4 resent deaths in my family and take anti depressants and see a therapist. I really believe I will go downhill if forced to move out right now. thanks David
It sound like the house is a marital asset that needs to be resolved in your divorce. I don’t know what state you are in but it’s extremely unlikely that you can leave the house “out of the divorce.” Your three choices are sell the house, one buys out the other, or you continue to jointly own it for awhile. Some couples agree in their divorce to jointly own a house for say 5 years and then sell. Hopefully this helps. I’m not an attorney so I’m just providing you with information not legal advice. I hope in mediation you can work out some sort of an agreement with your wife. You may want to consult with an attorney in your state to be really clear as to your options.
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Very useful information. Thank you. My ex-wife and daughter remained in our home and we agreed on a deferred sale. The mediation agreement was I believe anything over $500 as far as home repair goes, we split. She pays mortgage and taxes. My question is, when she sells the house when our daughter is 18, am I entitled to half of the equity at that point? Or am I only entitled to half of the equity the house was worth at the time of divorce?
Hi Robert, The answer to your question should have been specified in your divorce agreement. If it wasn’t, that’s a pretty serious omission and I would suggest working out an agreement with your ex-spouse on this point and filing it with the court.
When spouses have been physically separated for 3 years and one remains in the home making all payments for mortgage and upkeep, how is that factored into the home equity allocation when the house is sold in the divorce. Both names are on the deed and mortgage.
Hi Deborah, Thanks for your question. Sorry but there is no pat answer. In general, the division of your assets and debts (including home equity) is considered separately from any reimbursements that might be requested. In mediation of course, any agreement that is agreeable to both spouses is okay.