A divorce is one of the most mentally and emotionally stressful situations divorcing couples will ever face. Complicating that is the splitting of assets, including real estate and, specifically, determining the status of the family home.
Because of most people’s emotional attachments with their marital home, what to do with the house during a divorce, even an amicable divorce, can become a contentious issue. If the matter becomes contentious enough, a sale of the house can quickly morph into a flash point of anger and emotion.
Fortunately, disposing of marital property like the family home is not impossible if both parties are willing to work together. That includes keeping the property “in the family,” so to speak, by transferring ownership to one party as part of a divorce settlement. If that is not an option, we buy houses in Florida, or you can handle it yourself.
The following is aimed to answer the questions: “Can I sell my house during a divorce?” as well as on handling the disposition of the marital home and the options for both parties.
Yes, You Can Sell Your House During a Divorce
While it is possible to sell your home during a divorce process, many issues must be addressed, including determining if the home is considered by the court to be community property or separate property. You should never act alone, particularly if you and your spouse are on the mortgage.
Always float any ideas to your divorce attorney and your spouse or their legal representation.
If you are looking for creative ways to sell a house, you can consider alternative sales, such as selling to a home buying organization rather than throwing the property on the open market.
Here are some other things to consider:
Buy Out, Refinance or Sell Through A Realtor
Any of these options depend on what you and your spouse can agree to do. What is not advisable is that you remove one or the other name from the title. While that might clear up possession of the home, a lender or mortgage company does not have to honor the transition.
That is why if one party assumes control of the home, it is wise to consider refinancing options.
Mutual Sale
If both parties remain on the title and mortgage, a home sale is, in essence, a team project. The team approach is true even if you use a real estate agent.
If the home’s list price is fair market value but less than the outstanding mortgage, the names on the mortgage are still responsible for covering that debt, whether through regular mortgage payments or a one-time pay-off.
Not honoring the mortgage debt can lead to foreclosure, which can be an issue for both parties.
Additionally, both parties are still responsible for outstanding property taxes and liens, even after the couple is divorced.
One option to streamline that process is to work with cash home buyers in Orlando.
Using a Real Estate Agent
Going through a real estate agent has its requirements regarding divorce proceedings. Both parties must be included and agree on the disposition of the home regarding accepting any home selling offer. A real estate agent does not have to include the other party or their family law attorney if the home is up for sale via a court order.
Capital Gains Taxes
If a married couple sells a home, both are responsible for any capital gains taxes if both spouses’ names are on the mortgage or title. In most cases, capital gains are never an issue. If, however, one spouse buys out the home interest of the other and then sells the home, capital gains taxes are a possibility.
To reduce capital gains, the spouse buying the home should plan on living in it for at least two years.
If a buy-out is part of a divorce settlement, capital gains are not applicable, provided the home is not subsequently sold.
State Law
For most people, state laws on divorce and the splitting of property are fairly simple. Some states, like California, for instance, can get tricky. Some states also have laws that carry tax implications for the selling party. While you can rely on the law firm you hire to ensure you are covered, it never hurts to ask your attorney about your state’s laws regarding divorce.
Preparing to Sell a House During a Divorce
The first step to selling your home in a divorce is to decide when to sell. You might be getting divorced during the real estate offseason, which can greatly affect how many potential buyers see your home, the true value of the home, and the final sale price. In some cases, if both parties agree, it might be wise to wait until the real estate market is in season to pursue a home sale.
Getting the Property Ready
As with any listed property, the better the home’s condition, the better the sale price. The things you need to look for are as follows:
Decide if “as Is” Is an Option
Sometimes the best way to go, particularly if the divorce is contentious, is to list it as “as is” because this removes the possibility of one party taking issue with the actions of the other party. It also streamlines the selling process.
Needed Repairs
Get them taken care of if they are not major. Decide who is responsible for leaky faucets, loose floorboards, etc., and create a checklist. A checklist will help avoid any disagreements over needed work. You should also work out a budget with spending limits, so no one is surprised at expenses.
Who Handles Staging
Map out who is in charge of cleaning, decluttering, and rearranging. Remember that both parties must agree. One good idea is to let the realtor do the staging.
Sale Proceeds and Profit Splitting
Both parties should agree on how to track the sales proceeds and how any profit is to be split before the home is listed. The agreement should be in writing as a separate contract or part of a divorce agreement.
Making the profit splitting official is another job best left to the two attorneys involved if there is the least bit of animosity. If the profits get applied per a divorce settlement or equitable splitting of community property, plan how that will be done and tracked.
If profits are a sticking point, one suggestion is to use any profits to pay any attorney fees from the divorce. This way, both parties benefit from the sale of the home and have skin in the game regarding the sale going off smoothly.
Agreeing on a Price With Your Partner
Price agreement really comes down to both parties relying on the counsel of their attorneys and using common sense. Selling the home is painful enough, so both parties should remember that it is not a chance to settle scores or make life miserable for the other party. Even if you despise your spouse at this point, the smoother things run, the quicker you can move on.
If you two are doing it yourself, look at real estate reports for the selling prices of homes in your area. Factor in closing costs when selling a house and any associated fees. That is your asking price.
If you have help selling your home, rely on your realtor’s advice on the asking price, and if you are not using a realtor, ask your attorney to discuss the price with one.
Accepting Offers and Splitting Profits
How you split, any profits should be planned and agreed upon in advance. Your attorneys can make sure any profit splitting satisfies divorce settlement requirements.
When an offer comes in, try and discuss with your spouse whether you want to accept it or not.
If you decide you do not, work with your spouse on a fair counter offer. Be wary of any suggestions they or their lawyer make regarding altering any divorce settlement. Run everything by your lawyer.
If you cannot discuss it rationally with your spouse, go through your attorneys.
Regarding profits, a divorce agreement will dictate how the profits get used. After that, negotiating how to split profits or where they are applied can be done by your attorneys.
Using Marital Lawyers to Ensure Everything is Done Evenly
A marital lawyer is more than just someone that plays referee as you create your split with your spouse official. They can help you navigate all aspects of the divorce, including selling real estate property.
While it might seem that they are an immense expense, they are also used to applying your state’s laws and can help ensure your divorce and divorce agreement are as favorable as possible.
Conclusion
You can sell your home during a divorce and, in many cases, might have to do so. Your attorneys can walk you through the process and help ensure that the sale and profit splitting adhere to the law. Many organizations can help you sell a house fast in Tampa if you do not want to go through the process of a traditional home sale.
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