Selling A House in Divorce – What You Need to Know
When you sell your house with your partner, you both stay in the house until you finalize the sale. You share the equity between yourselves, and you make joint decisions about what to do with the money.
However, when you’re splitting from your spouse, that changes the process and brings in additional stress. You likely didn’t plan for this when you were first handed the keys to your home, but if you go through a divorce, it touches many areas of your life, including the sale of your old home.
Divorce house sales can delay a divorce, as spouses find it difficult to agree on various aspects of the sale. So, if you are selling a house during divorce, know how you want to approach the process and prepare yourself as much as possible for the challenges you’ll face.
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What Happens to a House in a Divorce?
Even in divorce, you have the option to decide between yourselves who will keep the house. If you can’t agree, you can take the matter to court, where they will decide for you.
The court’s decision depends on how and when you got your house and where you currently live.
Who Gets the house in a Divorce?
One of your greatest challenges of a divorce is splitting your assets. This process includes taking an inventory of everything you and your former partner own and deciding who gets what. For most people, their house is the most expensive asset they own.
Deciding who gets the house isn’t as easy as choosing who keeps the good china. If you can’t come to a decision, ownership depends on which state you live in.
Most states are equitable distribution states. In these states, if you can’t come to an agreement between yourselves, a judge decides how you split your assets. While dividing your assets, the judge considers many factors, including each person’s income, earning potential, and financial contributions.
There are ten community property states. In these states, you split your income, assets, and debt in half. However, property can be an exception to this rule. These rules apply in the following circumstances:
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If you owned the house before your marriage and you did not add your spouse’s name to the deed. If your home has appreciated since you got married, your spouse may still be eligible to receive some of that money.
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If you inherited the property or received it as a gift.
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If you bought the property after you separated but before finalizing the divorce.
Who Gets to Stay in the House During the Divorce?
In many cases, people going through a divorce prefer to have as little contact as possible. That makes going home to the same house after work or negotiations difficult. Still, you both need a place to live.
Ideally, you will come to an amicable decision over who gets to stay in the house. When you can’t, you can obtain an order of protection, which forces one party to move out.
Otherwise known as restraining orders, orders of protection most often apply in circumstances involving domestic abuse. If you receive a restraining order, you will not be allowed within a certain distance of your spouse and will have to vacate the property.
You must remember that you will still pay bills related to your home, even during a divorce. The person staying in the house must pay mortgage and utility payments as needed.
Certain circumstances may force you to sell your house before or after a divorce. This forced sale usually happens for one of two reasons.
In many divorces, one spouse will have to pay the other some money to cover certain expenses. If you can’t afford this payment, you may have to sell your house and pay your former spouse once you receive the money from the sale.
In other cases, divorcing parties can’t agree on how much their house is worth. If a judge deems it necessary, the court can order you to sell your home and split the proceeds.
What Happens If You Do Not Comply with a Court Order?
Receiving a court order to sell your house after a divorce agreement doesn’t mean you need to do it right away. If you don’t want to sell the house, you can hire a lawyer to fight the court’s decision.
You will need to prove that you should have the right to stay in your home. For instance, if moving would negatively affect your children, you may persuade the court to allow you to stay in your home. These legal battles can be expensive and go on for years, but if you win, you will be able to keep the house.
If your spouse defies a court order to sell your house, but your name is the only one on the deed, then you are legally permitted to sell it yourself. Hire a realtor to value your home, take photos, and put the house on the market. It may come as a surprise to the person living there, but you are legally allowed to take this type of action in such circumstances.
How to Sell a House During a Divorce
Whether you’re divorced or not, the sale of a house needs both parties to work together to finalize it. Selling a home in a divorce complicates the process. It requires agreements between both parties’ lawyers, as well as between each other.
You must record all agreements in writing. If you make an agreement without your lawyer present, inform them so they can document it for you. Writing down agreements makes it harder for your spouse to change their mind or claim you never agreed.
Some people worry that they will not be able to file for divorce while selling a house, but that’s not true. Divorce home sales can add stress that makes selling a house more difficult. Still, you can sell your house whenever you want, regardless of your relationship circumstances.
Points to Agree On
In many divorces, one person stays in the house while the other lives elsewhere. If you are the in-party, then you will likely have to take on extra responsibilities during the sale. For example, you must make sure the house is presentable for prospective buyers and allow the realtor access to the property.
You will also need to make sure that you and your former spouse agree upon any decisions made regarding the sale. For example, you must both agree on whether the house needs renovations or if you want to sell as-is. You can’t unilaterally decide to renovate the kitchen, as you and your former spouse will need to split the costs. If you both own the home, you must both agree on any upgrades.
The most important decision you will have to agree on is when to accept a sale. You should both agree on your ideal sale price as well as a minimum acceptable offer before you put it on the market. Knowing this information in advance makes it easier to decide when to accept an offer and when to keep waiting for the right buyer.
If you need to find the value of your house, you have several options. The cheapest ways are to use an online service like Zillow or compare your home to other recent sales in your area. However, you will get the most accurate valuation from a qualified appraiser.
Splitting the Proceeds
Once you have accepted an offer, you must then decide how to split the proceeds. If you live in a community property state, this will be a simple fifty/fifty split. Remember, selling a house in a divorce comes with the usual fees, as well as additional considerations, like:
Property taxes– You will need to settle any unpaid property tax liens attached to the house.
Agent fees– You will need to pay commission fees if you sold through a real estate agent.
Paying off the mortgage– Because you will not be entering into another mortgage with your spouse, you will have to pay off the remainder of your current mortgage
Equity lines of credit– If you have taken out a second mortgage, you may also need to pay this off with the proceeds of the sale.
Capital Gains Tax
Benjamin Franklin once said, “In this world, nothing is certain, except death and taxes.” Therefore, it should come as no surprise that you must consider taxes if you are selling a house in a divorce.
Depending on how much you sell your house for, you may have to pay capital gains tax. You can often write off capital gains tax with a tax exclusion. By filing as a couple, you can increase the allowed tax exclusion.
If you’re trying to decide whether to sell your house before or after divorce, the money you could save may help you make up your mind.
Final Points
If you do decide to sell your house before a divorce, you want to make the process as efficient as possible. Most people want to settle their divorce quickly, and with the tax exclusion, it makes sense to sell your house early. That aside, divorces can get expensive, as legal bills and additional costs add up, and the money from the sale can benefit you both.
The best way to sell your house fast in a divorce is to find a cash buyer. You won’t have to go through the hassle of putting your house on the market, so you don’t have to clean your house every time a potential buyer requests a viewing.
In cash sales, buyers often purchase houses as-is, which can benefit you. Listing your home on the market can extend the buying process, as well as create more problems for you to fix before a buyer can even purchase it. A cash buyer understands they may be inheriting some of the home’s issues.
If you need to sell your home during a divorce, contact us. We can help your home get the exposure it needs so that you can find that perfect buyer fast.
We buy houses in divorce situations, and we can help you sell your home, so you have one less thing to worry about. If you’re thinking of selling a house in a divorce, get in contact to see if we can help.