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.
Property division is a critical part of any divorce case, and the process becomes more complicated when one party wants to keep the home while the other wants to sell it. These conflicts can lead to legal disputes, especially during a contested divorce. In Omaha and throughout Nebraska, real estate division in divorce often requires navigating both financial complexities and court procedures. Whatever the case may be, there can be many nuances when it comes to the sale of the property in a divorce. Let’s take a look!
How Do I Force the Sale of a House in a Divorce?
After filing for divorce, numerous decisions must be made, including those related to the real estate division. The family home is often one of the most valuable shared assets, making it a central issue in divorce settlements. Some couples agree to sell and split the proceeds, while others may have conflicting interests—one party may want to keep the home, while the other prefers selling it to access their share of the home equity.
One party may want to sell the house, while the other wants to buy out the other spouse and keep it, but this often hinges on financial disclosure, the ability to refinance, and affordability. Legal challenges may arise if the party wishing to keep the home cannot demonstrate financial independence or fails to qualify for a new mortgage. In these situations, legal separation assets come under scrutiny, and the court may intervene to ensure a fair equitable distribution.
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
The ability to force a home sale depends on multiple factors, including financial stability, legal agreements, and state-specific property laws. Since a home is typically considered community property or a joint asset, disagreements about its sale may require legal resolution.
Ultimately, if you and your spouse can’t come to an agreement, the family law attorneys will likely get involved, and the courts will make the final decision. In order to come to a decision, the courts will take several factors into consideration, including whether one party refuses to sell or whether there’s a motion to force the sale of the marital home.
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 who wants to retain ownership of the home.
- 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.
- 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 property. 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
Significant debt during a divorce can prompt the Court to order the sale of assets to pay down the debt. This often includes the sale of the house. If you want to force the sale of the home, showing how the proceeds of the sale of the home can be used to pay down large amounts of debt can be persuasive. In contested divorce cases, debt plays a crucial role in asset division and can affect the overall property settlement.
Child 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 about 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
When one spouse refuses to sell the marital home, the court may intervene and order its sale while the divorce case is pending. A motion to force the sale can be filed to ensure fair asset division, especially when neither party can afford the mortgage alone.
Before pursuing a forced sale, consider the potential court rulings:
- Court-Ordered Sale – The court may mandate the sale of the property if both parties lack the financial means to maintain it.
- Mortgage Contribution Order – The court might require the spouse seeking the sale to cover a portion of the mortgage payments.
- Alimony Adjustments – A spouse may be ordered to provide spousal support to help the other party afford the home during the divorce proceedings.
Filing a motion to force the sale involves careful legal strategy, as the court could implement alternative solutions to make mortgage payments manageable. In most cases, when one spouse refuses to sell, the final decision is made during the divorce settlement or at trial.
Understanding Property Division in a Divorce
Dividing the proceeds from the sale of the property can be a complicated process during divorce. If the house is one of the major assets, understanding how it fits into the overall property settlement is essential. The court typically considers how much equity exists in the home, the contributions both parties made toward the property, and any other related financial obligations before making a decision. Family law attorneys can provide valuable assistance in ensuring that the division is done fairly.
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 Attorney Omaha
Child Custody | Child Support | Divorce Lawyers Omaha
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