This is a common question that many married couples face when going through a divorce. The house often represents the biggest shared asset and decisions about what to do with it can have major financial and emotional implications. There are several factors to consider when determining whether a husband can force the sale of the marital home.
What is marital property?
The first thing to understand is the concept of marital property. In most states, any assets or property acquired during the marriage are considered jointly owned marital property, even if the title or deed is only in one spouse’s name. A marital home purchased while married is generally considered marital property, belonging equally to both spouses.
Marital property is divided equitably between spouses during a divorce. This doesn’t necessarily mean a 50/50 split. Rather, property is divided in a way the court deems fair, taking into account factors like respective incomes, needs, and contributions to acquiring assets.
How is the marital home treated in divorce?
The marital home often receives special consideration in divorce. Even if one spouse made a greater financial contribution to purchasing the home, courts are reluctant to force the sale of a long-term family home if it would impose a hardship, especially when minor children are involved.
Some options for dealing with the marital home in divorce include:
- One spouse buying out the other’s interest
- Selling and splitting proceeds
- Continued shared ownership until a future sale
- Transferring ownership to one spouse, with an offset of other assets to the other spouse
Courts have discretion in dividing marital property equitably based on the couple’s circumstances.
Can a husband force the sale of the marital home?
Generally, no—a husband cannot singlehandedly force the sale of the jointly owned marital residence over the wife’s objections. Either spouse has equal rights to the home during marriage and divorce. However, there are some situations where a spouse may be able to compel the sale of the house:
- If both spouses agree to sell the home and split proceeds
- If the court orders the house be sold and assets divided as part of the final divorce decree
- If one spouse is awarded the home but cannot qualify for a mortgage or buy out the other spouse’s interest
- If one spouse abandons the home or violates court orders regarding the property
Absent these types of factors, generally the consent of both spouses is required to sell a marital home. One spouse acting alone cannot list or sell the house without the other’s approval.
How courts decide who gets the house
When determining who gets to keep the marital home, courts will examine:
- Financial resources of each spouse
- Custody arrangements for any minor children
- Contributions each spouse made toward the home
- Duration of occupancy in the home
- Emotional attachment to the home
- Hardships posed by selling the home
- Other available housing options
Courts do not automatically favor giving the house to the wife or children. The distribution is intended to be equitable while minimizing disruption, particularly for any kids involved.
Factoring in minor children
When minor children are involved, courts will generally be more inclined to award use of the marital home to the primary residential parent to minimize impact on the kids. However, this is not a given. Some factors that may result in the home being sold despite minor children include:
- Neither parent has the financial means to maintain the home on their own
- The non-residential parent is awarded significant timesharing and wants equitable access to the home
- Sale and split of proceeds is needed for an equitable overall property distribution
In some cases, one parent may be allowed to remain in the home with the children temporarily until the youngest reaches 18, at which point the house is sold and assets divided.
What if I don’t want to sell?
If you wish to remain in the marital home, be proactive in communicating this desire to your divorce attorney and the court. Be prepared to demonstrate:
- You can afford to maintain the home on your own, via assets, support payments, and/or income
- Selling the home would impose a serious hardship on you or children
- You are committed to buying out the other spouse’s interest in the home over time
The judge will consider your arguments along with your spouse’s position when making a decision that is equitable to both sides.
Getting an attorney
Divorcing spouses should retain experienced divorce attorneys to advocate for their respective interests in marital property division. An attorney can help you:
- Understand your state’s laws and process for distributing marital assets like the home
- Advise you on options for retaining the home
- Negotiate a property settlement with your spouse
- Obtain court orders allowing you to remain in the home
- Prepare legal arguments if your spouse requests the house be sold
Having professional legal counsel is critical to achieving the most favorable outcome when marital property is at stake.
Other divorce issues impacting the house
There are some additional factors that may influence decisions about the marital home in a divorce:
Mortgages and financing
- If the spouse keeping the house cannot qualify for refinancing, a sale may be required
- The court may order the spouse remaining in the home to refinance putting the mortgage in their sole name
- Proceeds from a sale may be needed to pay off marital debts
Tax implications
- Selling the home may trigger capital gains taxes
- Transferring the home between spouses may receive special tax treatment
- Ongoing shared home ownership can complicate taxes for ex-spouses
Spousal support
- If one spouse is ordered to pay alimony, the obligated spouse may seek to offset this by taking a larger share of home equity
- The spouse retaining use of the home may have less need for ongoing financial support
Consult attorneys and financial professionals to understand how best to handle the marital home considering your total financial situation.
Getting through the divorce process
Divorcing spouses who own a home together should:
- Try to compromise and remain flexible on options for the home
- Communicate respectfully and clearly with each other and attorneys
- Avoid taking any actions that could damage the home or equity value
- Be prepared for either outcome—keeping the home or selling/distributing equity
- Know your rights and make informed legal and financial decisions
With professional guidance tailored to your situation, it is possible to resolve marital home disputes fairly while minimizing added stress at an already difficult time.
Conclusion
In summary, a husband cannot unilaterally force the sale or listing of a jointly-owned marital home over his wife’s objections. Family homes are distributed equitably by courts based on factors like financial resources, custody, and hardship. Wives who wish to keep the home should be proactive in the legal process and demonstrate the ability to maintain the home on their own. Consulting divorce attorneys helps spouses understand options and negotiate favorable resolutions. With good planning and communication, couples can often avoid a bitter battle over the house during divorce.