Can a Divorce Judge Order the Sale of a House?
Divorce courts are known as courts of "equity," which means that their primary goal is to achieve an outcome that is fundamentally fair to the people involved. The law gives judges in equity courts wide latitude in terms of how to reach a fair result. So when it comes to marital assets, the court can distribute property in a way it believes will achieve an equitable result. If the spouses live in a community property state, the result must be a 50/50 split, but judges have discretion in terms of how they achieve an equal division.
For most divorcing couples, the family home is the most valuable asset, so how to ultimately divide it is often a major source of conflict for spouses. One spouse may want to sell the house, the other may not—perhaps because of market conditions. If there are school-age children involved, the custodial parent may want to stay in the house with the kids until they graduate from elementary or high school.
In truth, most couples are able to resolve this issue on their own. Evidence of this lies in the fact that the vast majority of divorce cases settle before a trial. But if spouses can't agree, then the court will decide the issue for them and can order the couple to sell their home.
Forcing a Home Sale Before the Divorce Concludes
Selling the family home before the divorce is over isn't how things usually play out. But if push comes to shove, a court can order the immediate sale of a home, while the divorce is still in progress. Courts have an obligation to preserve an asset's value when it appears that one or both spouses is either deliberately or involuntarily causing the asset's value to decline.
A classic example is where the primary breadwinner loses a job. Between the two spouses, there's no longer enough money to pay the mortgage, and the bank is threatening to foreclose. If the house can be sold now, there's a decent chance the spouses can salvage some money from the sale.
In a case like this—where there's no reasonable prospect of the financial situation improving quickly—a court will more than likely order that the spouses list the home for sale, even if one spouse opposes it.
What If a Spouse Objects to the Selling Price?
So now the court has decided that the marital home must be sold. The spouses consult a realtor or an appraiser in order to get an opinion about the value of the home. One spouse accepts the realtor's appraisal, but the other spouse disagrees.
A judge would likely order the objecting spouse to get another appraisal. If the second appraisal of the home concurs with the first, there should be little to argue about.
If the valuations are different, the judge might take an average of the two appraisals or appoint an independent realtor to value and list the house.
A judge may choose to bypass the couple and take the "independent realtor" route from the beginning, especially if time is of the essence. As much as judges don't like to ignore spousal input in a divorce—especially on something as important as the family home—their obligation to preserve the asset takes precedence.
If you have any questions about selling your home during a divorce, be sure to consult a divorce lawyer in your area.