Can I sell my marital home before I finish my divorce?

The short answer is – Yes!  However, you should consider the following before agreeing to list your house for sale:

1. Who owns the home?

• If you or your former partner own the home that you are living in at the time of separation together, then you need to get your former partner’s permission to list and sell the home.  If you cannot negotiate with your partner to get their permission, there are still options available to you. You should talk to a lawyer to see if mediation or arbitration are right for you.  As a last resort, you may be able to go to court and ask a judge to make an order to list and sell your house.   The judge may set the terms of the sale, such as who will have responsibility for organizing the sale, and who will be the real estate agent.

• If you or your former partner own the house entirely in your/their name, it is unlikely that a sale can be forced.

2. Are you married?

• Married couples have different rights in law than unmarried couples.  One of those rights is the right to possession of a marital home after separation.  For married couples, it is slightly more difficult to seek the sale of a marital home right after separation.  However, eventually a jointly owned marital home will be sold iff there is no agreement between the spouses as to how to deal with it.  If you are married and seeking a divorce and want to sell your jointly owned marital home, speak with one of our lawyers. We can help you determine whether your former partner’s rights to exclusive possession of the marital home will impact your ability to seek the sale.

• If you are separating and you were never married to your former spouse, and you own the property you want to sell jointly with your spouse, it is very unlikely that either you or your spouse will be able to prevent or significantly delay a sale of your jointly owned property.

3. Do you have children?

• Having children can potentially delay the sale of a marital home, depending on their ages and their involvement in school.  For example, sometimes sales are delayed allowing for children to finish off a semester of school.

• Another consideration for those who have children is the determination of a parenting plan prior to agreeing to list and sell the family home.   Negotiating a parenting plan in writing prior to agreeing to list and sell a family home is important for the stability of the children.  The last thing anyone wants is for there to be a disagreement over the children’s care arrangements a few days prior to the closing date of the sale of the house.

4. Where do you want to live after you sell your home?

• Consideration of where you would like to live after your home is sold is very important.  Your decision can be affected by a number of different factors.  One of those factors is whether or not you will have access to the proceeds of the sale of your home immediately when the house is sold.  Most people do not realize that if you cannot come to an agreement with your former partner, you may not have access to your share of the net proceeds of sale upon closing.  This may impact your ability to purchase another home immediately upon the sale of your former home, and may require you to rent for a period of time prior to purchasing a new home.

• Other factors you must consider before agreeing to list your house for sale are your lender’s conditions for extending financing.  Often times, a lender will be hesitant to extend financing without a separation agreement detailing whether or not you have to pay support or transfer property to your former spouse.  Without an interim or final separation agreement, many lenders will refuse to extend financing, which can prevent you from closing on a house that you purchase to move into after your family home is sold.

You should always talk to a lawyer before agreeing to list your family home for sale.  Our experienced lawyers can assist you with any questions you may have about selling your home.  Contact us now to schedule a consultation.

This article is authored by Erika MacLeod, an experienced Family Lawyer who is ready to assist you with any question you may have regarding your separation.

DISCLAIMER: articles provided on this website are intended to provide general information but do not constitute legal advice. We suggest that you consult one of our lawyers if you have a specific legal question or issue.