Selling Your House as Part of a Divorce

by Obermayer Rebmann Maxwell & Hippel LLP
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Selling your home and the attendant move to a new home are very stressful undertakings.  Assuming these challenges while in the midst of the emotional rollercoaster of a divorce complicates the process, and significantly increases everyone’s stress level.  Understanding how to prepare and sell your house, and the decisions required along the way can relieve a significant amount of that stress, and allow you to more clearly focus on the next chapter of your life.

This article discusses the process of selling your home as a series of “steps.” However, the actual process is never as linear, as cleanly divided, nor as simple as described.  Unless you have substantial experience selling residential real estate you should consult your lawyer for guidance at each step along the way.

STEP 1. PREPARING TO SELL

Before putting your home up for sale, there are many choices to make and responsibilities to undertake. For instance, some homes may require maintenance or updating before they are ready to sell, which, despite what the home improvement shows might imply, require money and time.  Those repair issues (what are they,  who will pay for and oversee them), plus pricing, sale terms, whether or not to utilize a real estate agent, and similar matters, will require you and your soon-to-be-ex to make some  difficult decisions. While you may have a relationship with your spouse that enables the two of you to have these discussions directly, prepare by discussing these issues, and your priorities, with your divorce attorney, and checking with your attorney before final decisions are made.

STEP 2. PUTTING YOUR HOUSE UP FOR SALE

Some people choose to advertise and sell their homes themselves. Most prefer to use a broker. With today’s multi-listing services, a broker can give your home the wide exposure needed for a faster sale. If you choose to work with a broker, you and your spouse can share the broker, since you are both moving towards the same goal; and having someone to work on your behalf, even if communications go through counsel, can make the process easier and help buffer or eliminate potentially contentious disputes.

A broker will require you to sign a contract reciting the terms of your agreement.  That is an important contract, and greatly impacts the amount of money that you will take away from the sale. Ensure you understand what you sign (what is the commission, is the agreement exclusive, etc.); and have your attorney review the agreement before signing it.

STEP 3.  RELATED ISSUES

Before your house is “on the market,” and whether or not you engage a broker, there are some other issues, unique to the sale process in a divorce, that must be addressed.

  1. Who will live in the home?Though not necessarily to be decided at this point, you need to determine if one (or both) of you is going to continue living in the house until it is sold and what responsibilities you will have.  Unfortunately, these issues are fraught with emotional and financial consequences, raise significant additional questions and can be some of the more contentious issues in the transition. Though usually decided by the laws of the state where you reside, because their resolution can have far-reaching effects in the divorce proceeding, discuss them with your attorney before agreeing to any resolution.
  2. Who will prepare and show the house? What will be required of each spouse to ensure the property “shows well” to potential buyers? Will you share responsibility for being present at showings, or will the agent handle everything?  Seemingly simple questions, but they have important consequences in the sale process.
  3. Making Property Disclosures. The laws of most states require that sellers provide buyers a disclosure form, including many specific details on the property, its contents, defects and history.  If possible, work with your spouse to fill out this form to ensure that it is complete and accurate; any deficiency could result in unwanted litigation by a disgruntled buyer.

STEP 4. THE SALE PROCESS

One of the biggest decisions in the sale of your home is how much you will ask for it. Discuss your asking price with your spouse, agent and attorney. Settle on a price both of you are comfortable with, or, if you cannot agree, trust in the opinion of your agent who should be familiar with market conditions and comparable sales.  Websites such as Zillow® give you an idea of the value but may not reflect the current state of the housing market in your neighborhood.

Once you receive offers, be prepared to have some serious discussions with your spouse, your agent, and your attorney. Some divorcing couples may not find selling a house together too difficult because both spouses want a timely, profitable sale.  However, if disagreements arise about whether to accept or decline certain offers, or make a counteroffer, seek advice from the professionals to avoid unnecessary confrontation. Your attorney and agent are there to help relieve the stresses in selling the house; do not hesitate to lean on them for that purpose.

The Purchase and Sale Agreement

The offer will normally come in the form of an Agreement of Sale presented to you (or your agent) by an interested buyer. The proposal will specify the price, down payment, and any contingencies, that is, requirements permitting the buyer to withdraw without penalty if certain things happen and must be satisfied before the parties are obligated to finalize the transaction.  Common contingencies include; (i) completion of a satisfactory inspection, (ii) a mortgage contingency permitting the buyer to withdraw if they cannot arrange financing; (iii) a contingency enabling buyer to sell their home before they purchase your house; (iv) a pest inspection, radon inspection, or other inspections performed to assure the buyer that the property is sound; and (v) an examination of the property’s title to confirm that nobody else has any claim or right to any portion of the property.

You may reject an offer outright, accept it as-is with no changes, or (more typically) respond with a counteroffer accepting some of the offer terms, but suggesting changes to others, such as a higher price or a closing date that’s sooner than the buyer proposed.

A legally binding agreement is formed when you and buyer accept a final offer agreeing to any changes from the original offer. The final agreement contains key terms of the sale, including agreed-upon price, contingencies, financing terms, dispute resolution, and closing date.

The Closing

The agreement will specify a closing date on which you will transfer ownership of the property to the buyer. By that day, the financing and other contingencies must be satisfied and the title examination completed. At the closing, money is transferred (the buyer pays you and you pay your mortgage), paperwork required to formally consummate the sale is completed, and the buyer receives the keys.

In most states, sellers are not required to be physically present at closing so long as costs are paid and documents are signed in advance.  This is another way to relieve the stress of the transaction between you and your spouse and reduce any unnecessary disputes and contentiousness.

STEP 5.  DIVIDING THE PROFIT FROM A HOME SALE

Once the sale is finalized, the proceeds realized can be divided.  Usually, the house is a shared asset and the financial responsibility and resulting profit is equitably divided.  The division of the sale proceeds is critically important and you should be guided by your attorney in handling this issue.

Selling a home is a monumental undertaking.  In a divorce, the emotional and financial consequences are exponentially magnified.  Better understanding the process and working with professionals who can guide you through the maze of issues can help smooth that process and allow you to focus on moving forward.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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