In the conclusion of most divorce proceedings in California, the situation with jointly owned real property typically changes. This transformation can take shape through a buy-out, where one spouse purchases the other’s interest, or by selling the community home to a third party. In cases of the latter, the divorcing spouses might opt for an immediate sale or, alternatively, a deferred sale, which could be deemed more appropriate or mandated by the court following a trial. Given the divorce scenario and the family law court’s jurisdiction over their property, neither spouse or co-owner has the authority to sell the house without the other’s written consent or a court order.
When one party desires to sell the community property, while the other opposes it, the sale can only proceed with a written agreement signed by both parties or a court-issued order for the sale. However, the court won’t grant an order for the sale of the house before a trial unless the requesting party can demonstrate that such an order is necessary to preserve the community equity before trial. For instance, the court might issue a pre-trial order for the sale of the family home to prevent foreclosure and protect the community equity.
Through mutual agreement, divorcing spouses may opt for an immediate sale of their house. In situations where there aren’t enough assets to award the house to one spouse, selling to a third party often becomes the most practical choice. When both parties agree to sell the house during the divorce process, they can utilize their respective shares of the proceeds as they see fit. If unresolved financial matters linger between the spouses, they might agree to retain a portion of their community equity in a trust account for future resolution, whether through agreement or trial. Occasionally, the parties may decide to delay the house’s sale to accommodate their children or other interests. In the absence of an agreement, a judge might still issue such an order, considering its impact on the children and each party’s financial situation.
If one of the spouses used their separate funds for mortgage payments or home improvements after the date of separation, they are entitled to reimbursement. However, a spouse exclusively residing in the marital home may also be held financially accountable to the community for its reasonable rental value. Having a realtor experienced in family law and a skilled family law attorney by your side is crucial for comprehending your rights and making informed decisions that align with your interests.
