Forcing the Sale of the Home Post-Divorce

Divorce means having to separate two lives, including all of the assets and debts that a couple has managed to accumulate during their marriage, and even in rare circumstances, property that each accumulated separately before the marriage occurred. For most couples, the largest asset that they need to divide is the marital residence. At the conclusion of the divorce, there are several options on what can happen to the marital residence. One of these options is for one of the spouses to remain in the marital residence and refinance the marital residence in his or her sole name.

This option can prove problematic if the spouse who remains in the home falls on financial hard times after the divorce is over. If you are on the mortgage together with your spouse, then you are equally obligated to make sure that the mortgage payments continue to be timely made. The mortgage holder will not care that the divorce court ordered your former spouse to make the mortgage payments; they can and will pursue both spouses named on the mortgage note, regardless of who was awarded the house in the divorce. In addition, if you are still listed on the mortgage together with your former spouse, it will typically not be possible for you to get a new mortgage on another home. For this reason, if your former spouse falls behind in mortgage payments or is in danger of doing so, you may want to consider the option of forcing your former spouse to sell the marital residence.

This occurred in a case called L.H. v. D.H. In that case, a wife was awarded the house and ordered to refinance it as soon as possible after the divorce. When she failed to do so and started making late payments, the husband petitioned the court to force her to sell the house. The court took judicial notice of the fact that the wife’s late mortgage payments was having a negative impact on the husband’s credit. The court then ordered that the parties had thirty days to agree on a realtor, or the court would appoint one. The court also made provisions in case the wife was not cooperative with the listing paperwork, and ordered her to maintain the residence and timely make her mortgage payments. The judge stated that if she failed to do this, she may be ordered out of the home before it sells.

There can be special challenges and issues presented when dealing with large assets like real estate. We have helped many clients with these and many other complicated issues. Call us today at (732) 529-6937 to talk about your divorce and your assets.

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