The family home is not just a place to live; it’s an emotional and financial anchor, especially in California where real estate values soar, and homes often hold unique charm. When couples divorce, the decision to sell or keep the house can become a battleground, with one spouse yearning to move on and the other clinging to the stability it represents. But what happens when one spouse wants to sell and the other doesn’t? Can a sale be forced in California?
The answer isn’t cut and dry—it depends on various factors. If you have a strong opinion about what should happen to your home, it's crucial to communicate this to your divorce attorney at Custody Queens early on. With the courts having substantial discretion in these matters, making a compelling case could be the key to achieving your desired outcome.
Understanding Home Ownership in Divorce
In California, all assets owned by married couples are classified as either separate property or community property. When it comes to divorce, each spouse retains their separate property, while community property is divided equally between the two.
Most assets acquired during the marriage (before the date of separation) fall under community property, meaning they’re jointly owned by both spouses. This includes any equity gained in a house bought during the marriage. Even if one spouse purchased the home before the marriage, if mortgage payments were made during the marriage with marital funds, some of the home’s equity could be considered community property.
When a house is classified as community property—either fully or partially—both spouses have a say in its fate. Typically, both must agree in writing to sell the house during the divorce. However, there are scenarios where one spouse might be able to force a sale.
Forcing the Sale: When Is It Possible?
When the Mortgage Is in Default
If there’s a risk of foreclosure on the marital home, the court may prioritize preserving the equity by ordering a sale, even if one spouse objects. In such cases, the court usually sides with the spouse requesting the sale, recognizing the need to protect the financial interests of both parties.
In Cases of Financial Hardship
A spouse might also persuade the court to order the sale if they can demonstrate significant financial hardship. If a spouse shows they have no other means to cover living expenses or court costs, the court may authorize the sale of the home to alleviate their financial burden.
Considerations When Selling the House
When requesting a court order for the sale of the marital home, it’s important to address various issues that could impact the process. Your attorney at Custody Queens might suggest including provisions that specify:
- The percentage of equity each spouse holds
- Whether the house requires repairs before being listed
- How the costs of repairs, maintenance, and fees will be divided
- The real estate agent who will handle the sale
- The initial listing price and the minimum acceptable price
Additionally, it’s wise to include a requirement for both spouses to cooperate in showing and marketing the property. If one spouse obstructs potential buyers, they could be in violation of a court order, giving the other spouse legal grounds to take action.
Custody Queens Protects Your Property Interests in California Divorce
Disputes over the family home or other property can lead to delays and tension during a divorce. The team at Custody Queens, including Certified Family Law Specialists, is dedicated to helping you reach resolutions that protect your interests and peace of mind. To explore how we can safeguard your property rights during a California divorce, schedule a consultation with us today.
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