A divorce can feel messy, emotional, overwhelming, and stressful. No one wants to go through one, and it certainly isn’t the path that you envisioned for your marriage. Sometimes, as time moves on, couples drift apart and can’t seem to find common ground. In other cases, difficult situations arise that try a relationship to the breaking point, and a couple can’t come back from that point. Whatever the case may be, there can be many nuances when it comes to the sale of a house in a divorce. Let’s take a look!

How Do I Force the Sale of a House in a Divorce?

If you or your spouse have decided to file for divorce, there are many factors that need to be taken into consideration and decisions that need to be made. On the long list of things that you must consider or discuss are the house and other jointly owned property.

Sometimes one party wants to keep the house and the other doesn’t object. It is also very common for couples to decide to put the house up for sale. However, sometimes, the couple going through the divorce process can’t reach an agreement about what they should do with their house. One party may want to sell the house, while the other wants to keep it. Sometimes this becomes more complicated when the party that wants to keep the home may struggle to afford the home on their own or to pay the other party their share of equity in the home if the home is not sold.  Does this describe the situation that you and your soon-to-be ex-spouse are experiencing? If so, you may be wondering if there is a way to force the sale of the house – and if so, how.

Force Sale of a House in a Divorce

Whether or not you will be able to force the sale of your house depends on a variety of circumstances that are unique to your relationship and your living situation. For most couples, a house is one of the biggest assets – if not the biggest asset – that a couple owns. So long as the home was purchased during the marriage, then typically it’s a joint asset. Unfortunately, a house can also be the source of the biggest disagreement about how it should be split between the two parties.

Ultimately, if you and your spouse can’t come to an agreement, the courts will make the final decision. In order to come to a decision, the courts will take several factors into consideration. While every situation is unique, these factors can include the following:

Can You Afford the House on Your Own

This is a two-part question for the person that wants to retain ownership of the home.

  1. Unless the home is paid off or the mortgage is already solely in your name, the Court is likely going to require you to refinance the home into solely your name.  If you won’t qualify for a mortgage at terms you can afford, then the Court isn’t likely to award you the home.  Thus, if one party wants to force the sale of the home, they may ask for proof that the party that wants to retain the home can qualify for refinancing.
  2. Monthly Mortgage Payment. Even if the person qualifies for refinancing, can they afford the monthly mortgage payments after the refinancing is complete?  Relying on expected child support or alimony to be able to afford the mortgage can be a risky decision.  There is no guarantee the other party will pay on time and these amounts are modifiable after the divorce is complete.  Also, keep in mind that the party that retains ownership of the home may be required to do a cash-out refinancing to be able to pay cash to the other party for their share of equity in the home.  Thus, you may need to budget what the mortgage payment would be after a cash-out refinancing when determining if you can afford the mortgage on the home.  If you can’t truly afford the mortgage, it may be better to sell the home.  If one party wants to force the sale of the home, their argument to the Court may include that the other party can’t afford the home and thus the home should be sold so the proceeds can be divided.

Other Debt

If there is a lot of debt, the Court may decide that assets need to be sold to pay down the debt.  This often includes the sale of the house.  If you are wanting to force the sale of the home, showing how the proceeds of the sale of the home can be used to pay down the large amounts of debt can be persuasive.

Custody

If the couple has children together, the custodial parent (whether having sole physical custody or joint physical custody) may ask for the Court to deny the forced sale of the home so that the children can have some consistency in staying in the home despite the divorce of the parents.  So long as the custodial parent can qualify for the refinancing and afford the mortgage payments, the Court may be less willing to force the sale of the home of the children even if the proceeds could otherwise be used to pay down debt.

Prior Ownership

If one party owned the home prior to the marriage, the Court may likely find that that party is awarded the home in the divorce.  So long as there is a method to pay out any marital equity that may be due to the spouse, it can be especially difficult to force the sale of the house if the party owned the home prior to the marriage.

Keep in mind that prior ownership does generally matter, but the names on the title of the home often matter very little.  In most cases in Nebraska, if the home was purchased during the marriage, even if only one party’s name is on the title, the Court will likely find that it is a marital asset of the parties and not solely the possession of the titleholder.  Thus, if the house in question is the marital home, the Court will likely care very little whose name is on the title when deciding who is ultimately awarded the home and who gets to stay in the home while the divorce case is pending.

How to Sell a House When Your Spouse Refuses

It is possible for the Court to enter an Order that the house is sold while the case is pending, even if one party refuses.  This typically occurs when neither party can afford the monthly mortgage on their own while the divorce case is pending.  If you are going to ask for the Court to compel the sale of the home while the case is pending, keep in mind that the Court could alternatively find another way to make the mortgage affordable to the person that wants to keep the home while the case is pending:  ordering you to pay a share of the mortgage or to pay alimony so that they can afford the mortgage payments while the case is pending.  Thus, this should only be something requested after careful consideration of the options.

In most cases, if one spouse refuses to agree to sell the home, the issue of forcing the sale is left until a final settlement between the parties or trial.

For further information on dividing property in Nebraska, see Nebraska statute 42-366.: Nebraska Revised Statute 42-366 – Property settlements; effect; enforcement; modification.

Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha

Child Custody | Child Support | Divorce Lawyers Omaha

If you are looking for an attorney in a child support case or divorce in Omaha, Nebraska, or the surrounding areas (including Papillion, Bellevue, Gretna, Elkhorn, Lincoln, Nebraska City, Sarpy, Lancaster), contact our office to set up a consultation.

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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.