Can One Spouse Force the Other to Sell the Home During a Divorce?

Nov 26

One of the most challenging aspects of a divorce is deciding what to do with the marital home. For many couples, the home is not only the most valuable asset but also one that carries significant emotional ties. This often leads to the question: “Can one spouse force the other to sell the home?”

The answer is nuanced and depends on a variety of factors, including the state’s divorce laws, the terms of any prenuptial agreements, and the specific circumstances of the case. Below, we’ll explore the situations in which a sale might be forced, the options available, and how the court typically approaches such disputes.

1. Who Owns the Home?

The first factor in determining whether one spouse can force a sale is understanding ownership. Real estate in a divorce is typically classified as either marital property or separate property:

Marital Property: If the home was purchased during the marriage, it is generally considered marital property, even if only one spouse’s name is on the title. Marital property is subject to division during the divorce.
Separate Property: If the home was purchased by one spouse before the marriage, and marital funds were not used to pay the mortgage or for improvements, it may be classified as separate property. However, if the property’s value increased during the marriage due to joint contributions, that increase may be considered marital property.

In cases where the home is marital property, both spouses typically have a legal interest, which means decisions about selling or keeping the home must be agreed upon or resolved by the court.

2. Can One Spouse Force a Sale Without Court Intervention?

In most cases, one spouse cannot unilaterally force the other to sell the home without a court order. Even if one spouse is on the title or is paying the mortgage, the court may consider the home marital property and require mutual agreement or court intervention to resolve disputes.

If both spouses agree to sell the home, the process is relatively straightforward. However, if one spouse wants to keep the home and the other wants to sell, the issue may need to be resolved in court.

3. When the Court May Order a Sale

If spouses cannot agree on what to do with the marital home, the court will step in to make a decision based on what is fair and equitable. In some cases, this may include ordering the sale of the home. Here are some common scenarios where a court might force the sale:

A. Neither Spouse Can Afford the Home

If neither spouse has the financial ability to maintain the home independently (including mortgage payments, taxes, and maintenance), the court may order the home to be sold. Selling the property allows the proceeds to be divided and helps both parties move forward without the burden of an unaffordable asset.

B. To Settle Marital Debts

If the couple has significant marital debts, the court may order the sale of the home to pay off these obligations. This ensures that creditors are satisfied and neither spouse is left unfairly burdened by shared debts.

C. Both Spouses Want the Home, but No Buyout Is Possible

If both spouses want to keep the home but neither is able to buy out the other’s share, the court may order the sale as the only equitable solution. This ensures that both parties receive their share of the equity.

D. One Spouse Refuses to Cooperate

If one spouse refuses to cooperate with a buyout or sale, the other spouse can petition the court to force the sale. The court will evaluate the circumstances and, if appropriate, order the property to be sold and the proceeds divided.

4. Alternatives to Forced Sale

Before pursuing a forced sale through the court, consider these alternatives:

A. Buyout

If one spouse wants to keep the home, they can offer to “buy out” the other’s share of the equity. This involves paying the other spouse for their portion of the home’s value, allowing the buying spouse to take sole ownership.

B. Refinancing

A buyout often requires the spouse keeping the home to refinance the mortgage in their name alone. This releases the other spouse from financial responsibility for the mortgage. Refinancing may also provide the funds needed for the buyout.

C. Delayed Sale

In some cases, the couple may agree to postpone selling the home, such as when there are children involved and stability is a priority. For example, the spouse with primary custody might stay in the home until the children graduate from high school, after which the property would be sold, and the proceeds divided.

D. Co-Ownership

While less common, some couples choose to maintain joint ownership of the home after divorce, particularly if the property is an investment or rental property. This arrangement requires clear agreements about responsibilities and future plans for the property.

5. Emotional Considerations

Forcing the sale of the marital home can be emotionally difficult, particularly if one or both spouses have strong attachments to the property. It’s important to approach this decision with a focus on long-term financial stability and fairness rather than emotional attachment. Working with a neutral third party, such as a Certified Divorce Real Estate Expert (CDRE), can help facilitate discussions and ensure that decisions are based on facts rather than emotions.

6. Working with a Certified Divorce Real Estate Expert (CDRE®)

Navigating real estate issues during a divorce can be complex and stressful. A Certified Divorce Real Estate Expert (CDRE®) specializes in helping divorcing couples manage property-related disputes, providing unbiased guidance to reach a resolution that works for both parties. A CDRE can:

Provide a professional market analysis and accurate valuation of the home.
Assist with buyout calculations and refinancing options.
Help market and sell the property if a sale is necessary.
Facilitate communication between spouses to reduce conflict and ensure a smooth process.

Conclusion

Whether or not one spouse can force the other to sell the marital home depends on various factors, including ownership, financial feasibility, and court decisions. While most cases require mutual agreement or court intervention, working with the right professionals can help simplify the process and reduce conflict.

If you’re navigating a divorce and have questions about your rights and options regarding the marital home, consider consulting with a CDRE® or legal professional. With their expertise, you can make informed decisions that support your financial and emotional well-being.

Nicole Woyak