Should You Sell Your House Before Divorce or Wait?

Should You Sell Your House Before Divorce or Wait?

Many questions arise about property division when couples are facing divorce, especially when the couple owns a home during the marriage. What should you do with it now that you are divorcing? Should you sell your house before divorce? Should one spouse buy out the other? How do we decide which way is best?

If you are in Chicago, it is a good time to sell your house. The current real estate market is pricing homes at an all-time high, and sellers can sell their homes for top dollar. If you decide to sell your house before your divorce is final, and you and your spouse cannot agree as to the division of the monies received once you have paid off all the necessary expenses like the realtor, the judge will require that the proceeds be placed in the care of one of the attorneys until the case is over. Many times, couples will wait until the divorce is finalized to sell the house, but it is not necessary to do it that way. If both parties can find substitute housing and can agree to sell the home, then there is no better time than the present.

If you decide to sell, you will both be involved in picking a realtor. In the event, you cannot agree on the realtor, have your spouse pick three different realtors and you can pick one of the three already chosen. Meet with the realtor then and see what needs to be done to the home, if anything, to ensure that you receive top dollar for it. You would likely be responsible for any joint repairs you decide upon, or any expenses related to making the home sell better. The real estate agent will suggest some things that will enhance the sale, like painting or new carpeting. Those joint expenses are typical and once those are completed, the property can be listed. With any luck, you will have the house sold quickly, and you can then either elect to split the proceeds equally or at least take some of the money to get you started on a new residence.

If you both live in the marital residence together with the children, then you are forcing a division of the parenting time between the two of you if you sell the house now. This may or may not be a mistake depending on the strategy of your case. Each case is fact-specific, and you should consult with your lawyer to see if it makes sense to sell the house if you are both living in it with children. Of course if you do sell, then you will need to focus on a parenting plan that incorporates that move and what it means for the children, including where they will go to school if you are moving out of the school district.

It depends on the facts of your case. In some instances, one person may not want to sell the home because they want to remain in the home. Most times, the court will allow one parent to purchase the house from the other instead of forcing a sale. But the person who wants the house must be able to afford to buy the other out and remove the person’s name from the mortgage and deed. It makes sense then for the person who can qualify for a new mortgage to go ahead and do that. If there is an agreement for one of the parties to attempt a refinance to remove the other’s name from the title and mortgage, then you should seek a court order stating that.

If there is no agreement on anything related to the home itself, then the judge may order the house sold. If the house can continue to be paid for, many judges will wait until the end of your case before ordering the home to be sold.

Both parties must decide if they (a) want the house and if yes, (b) can they afford it, and are they able to refinance it? Even if you want the house, you must be able to afford it. Do you have a job that pays you enough to afford the house without your spouse? If not, even though you want to keep the house, you may have to sell it. If you can afford it, but your credit is bad and you cannot get a loan, then you may have to sell it. There are a lot of factors to consider when one spouse wants to buy the house, but the other does not want to sell it.

The main benefit right now is the hot real estate market, which has given sellers a large advantage. If you wait, who knows what the market will be like a year or two from now? If a sale will be required, it is better to act now while the real estate market is favoring the sellers. Another benefit of selling the house is that when your divorce date is finally here, you will have already taken care of the division of this marital asset. There will not be any post-decree litigation surrounding the sale and you will not have to come back to court to argue about taking a lower price than the list price, or if additional repairs will be needed. All of these discussions surrounding the sale of the house will be conducted when you are in court, anyway, discussing other matters in your divorce. Once your divorce is finalized, then both of you will be able to move on and not have lingering issues in court past the divorce date.

Again, it depends on the facts in your case and what the strategy is to end the case. If you and your spouse are not in agreement as to the house value, or there are contribution issues surrounding the housing issue, it may be in your best interest to wait. If you intend to buy out your spouse, then it is in your best interest to have the house value as low as you can get it. Maybe by waiting a year or two until your case is over, the market will lower to more reasonable values, and the amount of money you would have to pay would go down. That can be a benefit to you if you intend to buy out the interest of your spouse.

Everything about your divorce case is fact-specific, so it is best that you sit down with a seasoned divorce attorney to find out exactly what you want and decide what is the best strategy. Just because your best friend waited to sell her house until after the divorce, does not mean it will be the right decision for you. You will only know that by discussing the case, informing your attorney what your goals are, and working together to develop the best plan for you. That might include selling the house right now, or it might be best for you to wait until after the divorce.




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