De Novo Law Blog

Figuring out what to do with your marital home can be one of the most difficult decisions you and your estranged spouse might have to negotiate. Many people are attached to their homes and find it hard to let them go. However, it might be necessary for you to downsize and find a more affordable home instead of remaining in your house.

Similarly, if you have significant home equity in divorce, you might not be able to afford to buy out your spouse’s interest. If you have a mortgage in both of your names, selling a house during divorce and splitting equity might be the best solution to separating your finances.

Some people believe that they must retain divorce attorneys to help them navigate property division issues, including selling their marital homes. However, you can also choose to retain a licensed legal paraprofessional from De Novo Law.

Stephanie Villalobos, LP, is licensed by the Arizona Supreme Court to handle divorce cases and property division issues on behalf of her clients and to represent them in court at a more affordable cost than what you would typically be charged by a divorce attorney.

Here are 10 facts about selling a house during divorce and after divorce that you should keep in mind when you are trying to figure out what to do about your marital home.

Selling a House After a Divorce. Click on any below for more details.

1. The Other Spouse’s Name Should Be Removed from the Deed
2. The Divorce Can Be Found by Prospective Buyers
3. Staging Will Be Important to Fill in Voids
4. You Will Have More Control Over the Process
5. Buyers Won’t Necessarily Know Your Motivation for Selling

5 Facts About Selling a House During Divorce

If you are considering selling a house during divorce and splitting equity with your spouse, keep the following five facts in mind.

1. The Court Can’t Order a Party to Sell Before a Divorce Decree

If you want to sell your marital home, your estranged spouse must agree. While you can get temporary orders from the court, the judge can’t order your spouse to agree to sell your home.

In Saxon v. Riddel, 493 P.2d 127 (Ariz. Ct. App. 1972), the Arizona Court of Appeal ruled that trial courts cannot enter temporary orders to force a spouse to sell his or her interest in the shared marital property even when the other spouse wants to sell and has found a buyer with a good offer.

This means your spouse will need to agree to sell your house before you can put it on the market.

However, if you owned a home before you were married in your name and still own it, it is your separate property and is not a part of the marital estate. In that case, you won’t have to get your spouse’s consent to sell your separate property.

2. The Parties Must Get Clearance to Sell Their Home During a Divorce

At the time your divorce case is filed, the court issues several restraining orders enjoining either you or your spouse from selling marital property or spoliating assets. These restraining orders also prevent you from selling your home without an agreement and order by the court. 

To get an order lifting the restraining order for selling a house during divorce and splitting equity, you and your spouse will need to draft and sign a stipulated agreement agreeing to place your home on the market. You will need to file your stipulation with the court.

Once you’ve filed it, the court will issue it as an order so that you and your spouse can move forward with selling your marital home.

3. Staging Is Important to Prevent Signs the Parties Are Divorcing

When you place your home on the market during a divorce, you need to remove signs that you are divorcing.

This is because prospective buyers and real estate agents notice signs of divorce and might then try to get you to agree to a lower price or less favorable terms.

Buyers understand that divorcing couples are motivated sellers and might need to sell their homes quickly. Try to remove the following signs that a divorce is pending:

• Missing pictures from the wall
• Missing furniture/sparse furnishings
• Empty closets
• Unkempt landscaping
• Other indicators of stress/distress

You might want to get help from a real estate agent with staging your home so that it appears more inviting. If your spouse has moved out, try to fill in the voids left behind.

If you and your spouse are both in the home during the divorce, avoid arguing or the appearance of conflict when prospective buyers come to view your home, and avoid telling them your reason for selling is a divorce.

4. A Spouse Who Can Buyout the Other Should Be Allowed to Do So

If your spouse truly wishes to remain in your marital home and doesn’t want to sell it, you should give him or her the chance to buy out your home equity in divorce. If you choose to do this, make sure your spouse is in a position to refinance the home in his or her name alone.

If he or she doesn’t have the financial means to assume the mortgage, your legal paraprofessional can negotiate with your spouse to try to secure an agreement to sell your home to get your name off the deed and the mortgage.

You won’t want your name to remain on the mortgage after your divorce because it could have the following impacts:

• Tie up your credit and prevent you from buying a new home because of your debt-to-income ratio
• Make your credit score decline if your spouse fails to keep up with the mortgage payments
• Prevent you from separating your finances so that you can move forward with your life

If your spouse says that he or she can refinance the home, set a deadline for him or her to do so. If your spouse can’t refinance the home in their name within that deadline, your agreement should stipulate that the home will have to be placed on the market when the deadline passes without refinancing.

5. The Parties Should Hire a Neutral Real Estate Agent

If you both agree that selling your home during your divorce and splitting equity is the best idea, you should agree to hire a neutral real estate agent to represent both of your interests when selling your home.

Only choose someone you both agree to hire so that the real estate agent will be someone whom you both trust.

Once you have hired a real estate agent, have only one of you serve as the point of contact with the real estate agent.

This can simplify the process since the agent won’t have to communicate with each of you and potentially sift through conflicting instructions.

5 Facts About Selling a House After a Divorce

If you get the marital house in your divorce, selling it after your divorce is final can be easier than trying to sell it while your divorce is pending. At this point, you also shouldn’t have to deal with home equity in divorce since your decree should already include that aspect.

Here are five facts you should know about selling your house after your divorce.

1. The Other Spouse’s Name Should Be Removed from the Deed

If you received the home in your divorce property division, your spouse’s name should not remain on the deed. If it is, you need to go to get a copy of your deed from the recorder’s office. Create a new deed that transfers the title to your home from your ex-spouse to you alone.

Once the new deed has been signed, record it and retain a copy showing that it is in your name only.

If you have a mortgage in both of your names, you can show your lender your divorce decree and submit a quitclaim deed. The lender might allow you to refinance the mortgage in your name alone as long as you can handle it. Otherwise, you might have to sell the home to get both of your names off of the mortgage.

2. The Divorce Can Be Found by Prospective Buyers

Divorce cases are matters of public record, which means that prospective buyers can find that you recently divorced. However, this does not mean that they will know your motivation for selling your home since it is yours alone.

Even if a potential buyer discovers your divorce, it is unlikely that the buyer will know why you are selling or try to use your divorce to lowball you.

3. Staging Will Be Important to Fill in Voids

After dividing your property in your divorce, your home might be sparsely furnished with voids throughout the home. Staging will be critical in helping you secure a good sales price.

Work with your real estate agent for ideas on how to stage your home to place it in the best light. You will want it to appear welcoming to interested buyers.

4. You Will Have More Control Over the Process

One advantage of selling your home after divorcing is that you will have control over the process. You won’t have to deal with your ex-spouse in making decisions about offers or how the process should work. 

5. Buyers Won’t Necessarily Know Your Motivation for Selling

Even though you recently divorced, buyers won’t necessarily know why you are selling your home. This means that you won’t have to worry about buyers trying to use your divorce as a way to secure more advantages in the sale.