I’m getting divorced, do I have to sell the family home?

Divorce ranks among the most challenging life events one can experience. In divorce proceedings the family home is often the main asset and if you find yourself needing to sell your home and relocate due to divorce, this can add to the difficulty.

The process of selling a house during a divorce can be incredibly complex and emotional as this is your home and may be your children’s home too. Therefore, it is recommended to approach the situation with clarity and knowledge.

Can I keep the house after the divorce?

How the family home is split will depend upon various factors such as length of marriage, availability of other assets, income, housing needs and mortgage capacity of each party.

If you are the sole owner of the property, you may be able to keep it. However, its value will be taken into account during the financial division if it is classified as a ‘marital asset.’

If you co-own the property with your spouse, you will need to come to an agreement about who will retain the house, or split the proceeds of sale between you to purchase your own separate homes

One important aspect to consider in a divorce involving a house is that your legal right to remain in the property. If your spouse is listed on the mortgage, you will likely need to secure a new mortgage and demonstrate your ability to manage the mortgage payments solely with your income.

The courts will always prioritise the welfare of the children, and this means the party with whom the children live with may get more of the assets to ensure the children’s housing needs are met.

What steps should you take to sell a house during a divorce?

Once the solicitors or court have determined your share in the family home, they can consider the following options:

• Sale of family home
• Transfer of ownership of family home from one party to the other
• Deferred Sale, where one party is allowed to live in the family home and the sale is deferred to a future date. This is usually used where there are children involved and allows their main carer to live in the family home until the children finish full time education; and then family home is then sold.

If you're selling your house during a divorce, it's essential to demonstrate that you've attained fair market value for the property. It's advisable to have the house professionally appraised and, if possible, to document this valuation in writing with your spouse.

If the house is solely in your name, you have the right to sell it; however, your spouse may have matrimonial home rights. This means you would need to notify them of the sale and provide time for them to find alternative housing. In cases of jointly owned property, both spouses must agree to the sale.

Once the property is sold and any remaining mortgage is settled, any leftover funds typically need to be factored into your divorce settlement.

Navigating the complexities of divorce while selling a house can be quite challenging. Collaborating with a firm like Hegarty, which provides top-notch family law and conveyancing services, can help streamline the process and alleviate stress.

Is it possible to sell your property before finalising your divorce settlement?

You will be advised not to sell your property until the court has approved the financial settlement.

However, sometimes it may be necessary, for instance to provide housing for each party. Its value will still be a factor taken into account in the settlement process.

Can I decline selling my house during a divorce?

Legally, if you co-own a property with your spouse, you cannot simply refuse to sell if they want to. In the worst-case scenario, they could obtain a court order compelling you to sell.

If you are the sole owner of the property, you would only need to sell your home if it is necessary to fulfil your financial obligations stemming from any negotiated settlement or court-mandated division of finances.

What steps can I take to prevent selling my house during a divorce?

Navigating the division of a home during a divorce can be complex, particularly since it is typically the most valuable shared asset. Here are some options to think about:

Buying Out Your Spouse’s Share

If you have the financial resources, you might choose to buy your spouse’s portion of the property. This process involves a transfer of equity, which will remove your spouse’s name from the property title. If a mortgage is in place, you’ll need approval from your lender, and you may have to apply for a new mortgage.

Offsetting Your Spouse’s Share with Other Assets

If there are other significant assets available, you could agree for your spouse to take those assets in exchange for relinquishing their share of the home. It’s crucial to obtain an independent valuation of all assets involved to ensure the exchange is equitable for both parties.

Mesher Order

This legal arrangement permits postponing the sale of the property to a later date. It is often used when children are still residing in the home, allowing one parent to remain until all children have moved out. This can help reduce the disruption for children during the divorce process.

How can Hegarty help?

For professional assistance regarding divorce and property rights, please reach out to a member of our team. We are also here to help with any other inquiries or concerns you might have about divorce and separation.