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.