Divorce is a complex process, and when a marital residence is involved, this adds another layer of legal and financial considerations. Whether your home must be sold due to financial necessity, a court order, or mutual agreement, understanding the legal framework in Texas is crucial for a smooth sale and successful close.
How to Decide if the House Must Be Sold?
In Texas both spouses typically have an interest in the marital home if it was purchased during the marriage. If the parties cannot agree on what to do with the home, the court can decide or enforce terms as part of the property division in the divorce, however, those terms must be clear. The key factors that influence this decision include:
- Each spouse's financial ability to maintain the home - if one party cannot afford the mortgage, a sale may be the only option. If the marital estate is limited, a sale of residence may be the only option to ensure both parties have the financial means to move forward.
- Existing agreements such as prenuptial or postnuptial contracts.
- Existing agreements in a Decree of Divorce.
Selling the Home by Agreement
Agreement Between Spouses
If both parties agree to sell the home, the process can be straightforward however, there are terms that are important to include in a Decree of Divorce. It is important to address:
- Realtor – Choosing an experienced real estate agent who understands the dynamics of a divorce sale is critical or have an agreement on how to select a realtor if you cannot agree.
- Agree on a Sales Price and Sale Date – Spouses should decide whether to accept an appraisal, comparative market analysis, realtor price, or another valuation method.
- Divide the Net Proceeds – Once the home sells, the proceeds are divided. Spouses can agree on how to split the funds.
- Mandating a Sale Timeline – The court can set deadlines for listing, price adjustments, and the closing date.
- Ensure fair division of proceeds by working with an attorney to account for mortgage payments, HOA fees, utilities, insurance, repairs, and maintenance costs made by each spouse; and
- Include clear terms in a final order to outline the steps for selling the home.
Common Challenges in Selling the Marital Home Post- Divorce
- Disagreements Over Pricing or Offers – One spouse may want to accept a lower offer to move on, while the other holds out for a higher price.
- Refusal to Sign Closing Documents – If one party refuses to cooperate, the options may require court intervention.
- Interference from a Spouse Living in the Home – If one spouse still resides in the home, they may obstruct showings or delay the sale process. If you include a term on who lives in the home post-divorce, it can assist with this issue and provide clear boundaries.
- Order is Unclear – If the order is unclear on the sale of the martial residence, it can make it difficult at closing to issue the check or can cause issues when listing the residence for sale.
Final Thoughts
Selling a home after a divorce can be emotional and legally complex. Even when the sale of the home is by agreement, careful planning and legal guidance can help ensure a smooth process and successful close. If you’re going through a divorce and need assistance with property division, hiring our office to assist with drafting your legal documents can protect your property rights and financial future.
Need help navigating the sale of your home during a divorce? Contact the Simple Texas Divorce office today for legal guidance.