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Deferred Sale of Family Residence is Possible in Divorce

Deferred Sale of Family Residence is Possible in Divorce

Posted on January 4th, 2011

Owning a Home and Getting Divorced: Is Delaying Sale Possible? San Diego Divorce Expert Attorney Answer

If you and your spouse have recently decided to separate or get divorced there are many questions you may have. You may be wondering, where am I going to live? How are my finances going to change? Who is going to get custody of the kids? It may feel like there are a whirlwind of issues that need to be decided.

One important issue that often arises  in a San Diego divorce is what to do with the family home. If you and your spouse own a home, either together or maybe titled under one spouse’s name only, you are now faced with the decision of what to do with a home that is community property, quasi-community property, or separate property with a community property interest. Do you sell it now or keep it? Can spouses getting a divorce continue to maintain joint ownership of a home after entry of a divorce judgment? The good news is that the family residence may not need to be sold right away. In fact, you do not need to sell a community home before a final judgment is entered, or in some cases, even after a divorce judgment is entered.  However, it is vital that you contact a qualified family law expert to get advice concerning how your family residence may be characterized, what effects the sale of a community family residence may have in your overall case, the advantages and disadvantages of maintaining joint ownership of property post-judgment, and other important issues such as how a Marital Settlement Agreement may be drafted to protect your interests.

In California, spouses owe each other a “fiduciary duty” to act in the best interest of the community. This essentially means that each spouse must act fairly and honestly when dealing with each other and cannot take advantage of the other. However, refusing to sell your community home when your spouse wants to and you do not is probably not a breach or violation of a spouse’s fiduciary duty. Often one spouse may insist on selling the home immediately in order to make a quick and clean break. This however may not be the best decision financially or for the family. The housing market might be experiencing a downturn, or you and your children may still wish to live in the home for example. Thus, delaying or deferring the sale of the home until a later specified date might be the best option. If parties to a divorce action cannot agree when a residence will be sold, the Court has broad discretion to fashion orders pertaining to a deferred sale.  However, the court will normally order a property to be sold absent a good cause showing by the party objecting to the sale that a sale would negatively impact the community financial estate, negatively impact minor children, and so forth.  Accordingly, it may be okay to decide to wait to make a decision about what to do with a family residence until a divorce is final.

For more information contact our Certified Family Law Specialists.  We offer a private consultation and our lawyers are skilled in properly preparing divorce pleadings and litigating community property issues.  Feel free to send us an email or call our office at (619) 284-4113 where our partners are available to speak with you directly.