We often get this question in the context of a divorcing couple. And the short answer is, “Yes.” The court can force you to sell your home because they have the authority to transfer property from one spouse to another or to order property sold pursuant to a dissolution of marriage. This mostly comes up in one of two ways.
First, if the parties cannot agree to the terms of their divorce and a trial is required, the court can issue property orders which could include selling or transferring real estate. Property orders are final upon divorce and unless there is a successful appeal, the court’s orders must be followed and cannot be changed. Case law actually states that if the house is ordered to be sold, the parties cannot thereafter agree that one of the parties will buy it from the other (!).
Secondly, when the parties come to an agreement with regard to the house or if the court makes orders with regard to the house that include terms that can lead to a later order of sale. This is usually the case when one party is to reside or even own the house but the other party still has an interest in the house. The interest could be money owed for part of the equity or the fact that they are still on the mortgage. In these cases, the usual course is to give the person living in the house a certain amount of time to either pay off the other party or refinance to remove the other party’s name from the mortgage or both. Normally the court will retain jurisdiction (authority) over the property so that in the event the person living in the home does not do what they are supposed to (pay the mortgage, pay the taxes, make the pay-off, refinance) then a sale of the property can be ordered.
While parties have limited input regarding specificity of the orders when a judge is rendering a decision after trial, they have full control when proceeding with an uncontested divorce agreement. When finalizing an agreement for divorce it is very important to be specific with regard to what will happen with the house. It is very useful to have contingency terms so that if one plan does not happen, everyone knows what the next step is or consequence is. Even language concerning the listing and sale of the house should be thorough. It is not enough to just say the house will be sold. Topics that need to be covered include:
- How will the listing agent be chosen?
- By what date?
- Who will be the primary contact?
- When will the divorcing parties need to be consulted?
- How and when will the price be reduced?
- Who will be responsible for showings?
These are just a few examples. If you are proceeding without the assistance of attorneys, it would be advisable – as always – to run your agreement by a good divorce lawyer for feedback. Attorneys experienced in family law are aware of most potential problems and can offer valuable insight into suggested language for your agreement regarding your property. Again, once your agreement is accepted by the judge and made an order of the court, it cannot thereafter be changed.
Family Law Lawyers serving Danbury, Connecticut and all of Fairfield and New Haven Counties.
