Can I keep the house?

May 18, 2006 10:24 AM

Can one partner of a divorcing couple compel the sale of the house for the purpose of division of assets?

IANAL and YANAL, but perhaps Metafites can advise before I see a lawyer:
My spouse and I may be divorcing soon. We live in CA and own our house jointly as community property. If my spouse wants the house sold as part of the division of assets, but I want to keep it and live in it, am I compelled to sell if no other agreement can be reached?
I recognize some options, such as selling at some future date and splitting the equity then; or me buying out my spouse's interest at the current assessed (or market) value. But my spouse may want the money immediately, and for emotional reasons would not want me to keep the house.
This may be the only potentially contentious issue in an otherwise amicable split.

posted by pgoes to human relations (7 comments total)

In my experience, the general action is: you refinance the house and buy the (ex) spouse out. I mean, sure, a house is a powerful emotional thing, but if you live in California, it's also more money than most Americans will ever see in their lives.
posted by dagnyscott at 10:44 AM on May 18, 2006

Assume that you are 'forced' to sell. What would prevent you from buying it? Would the split equity be enough for a down payment on the new market-rate price? Would you as a single income person (with alimony to pay) be able to afford the new payment?

Personal experience: At the time of my divorce my ex and I determined the equity and I bought her out of her half of the equity. She essentially held a mortgage for that amount which I paid over 5 years. Of course my ex was in such a rush to get out that she was willing to do most anything moneywise. YMMV
posted by Gungho at 11:12 AM on May 18, 2006

Obviously, a lawyer will be able to give you advice about what your options are in CA. In general, if your spouse doesn't want to stay in the house, his/her emotional reasons for you not being allowed to stay aren't a good reason to force a sell of the house, if you can buy the other half from him/her. The reason so many divorcing couples end up selling is because neither can afford to keep the house on their own, and/or can't afford to buy out the other person.
posted by Sprout the Vulgarian at 11:24 AM on May 18, 2006

I got a home equity line of credit, withdrew money to buy her share of the house. That was in conjunction with a quit claim deed. Somewhere in there, I also re-financed the main mortgage to take her name off of it.
posted by indigo4963 at 12:28 PM on May 18, 2006

This is pretty much exactly what happened with my husband's parents in CA. He didn't want her living in "his house," even with their children getting to stay in the home they were familiar with. She had to sell and move. That may have not been the only legal solution, but it's what they monetarily had to do, and it still reverberates among their grown children decades later. You have my sympathies.
posted by GaelFC at 1:36 PM on May 18, 2006

There is absolutely a California cause of action (called "suing for partition") where the judge orders the home sold and the profits divided between owners pro rata.

There's typically nothing to stop you from making the purchase yourself but the court will likely requires that the house be listed and thus you will be competing with all other buyers.

You really want to negotiate and reach an out-of-court settlement if at all possible. Typically court ordered divisions are unsatisfactory to all parties.
posted by GIRLesq at 3:17 PM on May 18, 2006

If any joint tenants in common (married or not) fall out, one of the tenants can bring a partition lawsuit and force the sale of the property, with the assets divided up among the tenants. As others have said, this should all be negotiated in the divorce settlement. Make sure you get your ex's name off the title if you do get to stay as it will be much more difficult to do it later. Of course, IANAL.
posted by TheRaven at 3:47 PM on May 18, 2006