Selling a House During a Divorce: Options and Steps

Your three options for the house in a divorce

Selling is often the cleanest of the three. It ends the shared debt, turns the house into a number that can be divided, and lets both people start over. A buyout makes sense when one spouse truly can carry the home alone. Waiting can be right for a family, but it needs clear written terms.

Who gets the house in a divorce?

State law decides who gets the house in a divorce, and states take two broad approaches. Community property states generally treat what a couple acquired during the marriage as owned by both. Other states divide marital property by what a court finds fair, which is not always an even split.

In either system, the name on the deed is not the whole story. A home bought during the marriage is often treated as marital property even if only one spouse is on the title, and until there is a signed agreement or a court order, both spouses generally keep their rights in it. If you and your spouse agree on what happens to the house, the judge can approve that agreement. If you cannot, the judge decides.

This is general information, not legal advice. A divorce attorney in your state can tell you how the rules apply to your home.

Can one spouse sell the house without the other?

In most cases, no. A buyer and a title company will want both spouses to sign. On top of that, in some states standard court orders take effect as soon as divorce papers are filed and served that bar either spouse from selling, transferring, or borrowing against property without the other's written consent or a judge's permission. California is one example.

The practical rule is simple. Get the agreement to sell in writing, tell your attorneys before you sign a listing agreement or accept an offer, and ask whether the court needs to approve the sale first.

What happens to the mortgage

The lender is not a party to your divorce. If both names are on the loan, both of you remain responsible for it until it is paid off or refinanced, no matter what the divorce decree says about who should pay. A missed payment can damage both credit records.

That is a strong argument for selling, or for a buyout that includes a refinance in the keeping spouse's name alone. Until one of those happens, agree in writing on who makes the payment each month and keep proof that it was made.

Should you sell the house before or after the divorce is final?

There are good reasons for each, and the right answer depends on your situation.

• Selling before turns the house into cash that can be divided in the settlement, ends the shared mortgage sooner, and stops the cost of carrying a house that neither of you may keep
• Selling after can make sense when the market is slow, when children need stability, or when the settlement itself decides who controls the sale
• Taxes can differ. The IRS has rules that let many sellers exclude part of the gain on a main home, and how they apply can change with your filing status and how long each of you has lived there. Ask a CPA before you choose a date

Whether you sell the house before or after the divorce, put the terms in the settlement: who lives there in the meantime, who pays for what, how the price is set, and what happens if it does not sell.

Selling the marital home: listing or a cash offer

Selling a marital home with an agent can bring a higher price, and for a house in good condition that is worth serious thought. It also requires two people who are separating to keep agreeing: on the agent, the list price, the repairs, every price reduction, and every counteroffer, often while one or both still live in a home that has to stay show-ready.

A direct cash sale reduces the number of joint decisions to one. Allpoints Moving Services partners with Riv Buys Properties, a family-owned cash property buyer. They provide a written cash offer within 24 hours with no obligation, buy as-is with no repairs, charge no fees and no agent commissions, and can close in as little as 7 days or on the date you choose. They evaluate properties anywhere in the country.

A cash offer may come in below a potential retail sale price. The trade-off is no repair bill, no commission, no financing delay, and a closing date you both control. Since the offer carries no obligation, it can also give both spouses and both attorneys a firm figure to work with.

Sell your property to Riv Buys Properties and your move with Allpoints is complimentary, packing aids included. Ask either team how the offer applies when two households are moving, or see the free move offer.

How divorce home sale proceeds are handled

At closing, the sale price first pays off the mortgage, any other liens, and the costs of the sale. What remains is the net proceeds. Those are divided according to your written agreement or the court's order. If the division has not been decided yet, the money may be held in an escrow or attorney trust account until it is. Tell the closing agent about the divorce early so the payout is set up correctly.

Planning two moves out of one house

A divorce sale usually ends with one house emptying into two homes. Decide who is taking what before moving day, and put the list in writing. Label by person as well as by room, and schedule the two loads separately if being there together would be hard.

Tell your mover up front that there are two destinations. We handle local moves and long-distance moves, and our moving checklist keeps the tasks in order. Request a free quote as soon as you have a closing date, and see our guide to timing your closing date and moving date.