One of the most difficult things to do during a divorce is dividing assets. While some couples amicably split assets as they feel is right, or 50-50, many struggle to fight for what they feel is theirs. Possibly the most complicated asset to split is the marital house, you can’t rip it apart and take half each, so you’ve got to decide if one person will get to continue living and owning the home, or if it must be sold and the proceeds split.
Unless one of the parties is prepared to take on the mortgage and other expenses related to owning a home and buy out their partner, the best thing to do is to sell the property and divide up the proceedings. However, this is definitely easier said than done, especially if one of the parties refuses to sell it.
So, what happens if one of the parties refuses to play fair? Can a court intervene? Read on to find out.
Yes. If a divorcing couple is unable to agree to a settlement and it is required to go to trial, a judge can order the sale of a house immediately. In fact, if two parties cannot agree on who gets to keep the house, this is the default solution.
Under Massachusetts State Law, a judge is allowed to order the division of proceeds in any way that they deem fair, whether that be 50:50 or not, regardless of who legally owns the property.
Whether you will be able to force the sale of your house in a divorce typically comes down to your circumstances, related to your unique relationship condition.
If you and your spouse are unable to come to an agreement, your case will have to go to court for a judge to make the ultimate decision. That judge will force the sale unless there are extenuating circumstances, such as when a child’s welfare is at risk.
In order for a judge to decide whether one spouse will be allowed to keep the family home over the other, there are several factors that they will consider:
1. Duration of marriage
2. The conduct of each spouse during their marriage
3. The age and health of each spouse
4. Occupation and income of each spouse
5. Income opportunities for each spouse
6. Needs of any children, both present needs and future
7. Contributions made both to acquire the property and to maintain it
A judge is then able to force one party out of their house during a divorce, usually due to:
- Other joint assets having the equivalent value of their fair share of equity.
- One spouse provides a “buy out” to the other to purchase their share of the home. They will need to prove the value of the home and show that they can afford the buyout.
- If there is no equity in the house, one spouse can put forward a solution where they can keep the house and the other party will hold no liability.
- One spouse has acted with very poor conduct during the marriage, such as putting their spouse through financial hardship or abuse, so the judge will award the house to the innocent party.
- Providing the marriage lasted for a very long duration, a judge can award a house to the party that would otherwise be unable to procure a similar property.
- One spouse wishes to preserve their home for dependent children. They must be able to “buy out” the other party, as mentioned above.
Yes, a judge can defer the sale of a house in a divorce under the current Massachusetts State Law, provided that there are dependent children who benefit from this. Deferred sale orders, however, are not very common.
Deciding what to do with your marital house during a divorce can be stressful and overwhelming, but you really only have three choices:
1. Sell your house and split the proceeds in a fair way
2. Keep your house and stay in it
3. Your spouse keeps the house, and you find somewhere else to live
If it is agreed that one of you will keep the house, that spouse will need “buyout” the other, as mentioned above, with either savings, a retirement fund, or using other assets. Alternatively, you may be able to refinance the mortgage and cash out just what you need to compensate the other spouse.
If the mortgage is under both names, you need to amend the mortgage, so it is just in the name of the spouse keeping the house. You can refinance the mortgage to do this, although this comes at an expense and will take time, or you may be able to get an “amendment to the note”, “modification to the note”, or an “assumption of the note” on your existing mortgage meaning you can retain the terms and carry on paying as before.
If the title for the house is under both names, you can ask a real estate attorney to organize a “quitclaim deed” for you which will allow you to remove the other spouse from the title.
When you are faced with a divorce, you can also be faced with a lot of stress and possible complications, especially when you own a home together. Often the simplest and fairest thing to do is to sell the house and split the proceeds equitably.
If you are going through a divorce and want your house sold as quickly as possible, don’t hesitate to reach out to us. We work our absolute hardest to make sure that the selling process is simple for both involved parties.
With years of experience purchasing houses in the state of Massachusetts and New Hampshire, we have all the knowledge we need to help you navigate the selling of this important asset so that both spouses are satisfied.
If you want an objective, no-obligation cash offer for your house today, simply call or text us on 781-309-7085 to discuss what we can do for you.