At the conclusion of most divorce proceedings in California, the status of jointly owned real property often undergoes a significant transformation. This transformation can take the form of a buy-out, where one spouse purchases the other’s share, or by selling the community home to a third party. In cases of the latter, divorcing spouses may choose between an immediate sale or, alternatively, a deferred sale, which could be deemed more appropriate or ordered by the court following a trial. However, due to the divorce context and the family law court’s jurisdiction over their property, neither spouse nor co-owner possesses the authority to sell the house without the other’s written consent or a court-issued order.
In situations where one party seeks 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. Nevertheless, the court will not 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 pending trial. For example, the court might issue a pre-trial order for the sale of the family home to prevent foreclosure and safeguard the community equity.
Through mutual agreement, divorcing spouses may opt for an immediate sale of their house. In cases where there are insufficient 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 persist 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. On occasion, the parties may decide to delay the sale of the house 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 the financial circumstances of each party.
If one of the spouses used their separate funds to make 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.
