27 Dec I’m getting divorced. Can the judge force a home sale?

Q. I heard judges will always force the sale of a home in a divorce if the spouses can’t come to an agreement. Is this true? In my case, I can afford the house while my spouse cannot. My spouse wants to sell the house. I want to keep it but he refuses to let me buy him out. We have no children. He doesn’t have a regular job while I am gainfully employed and would pay him his share of the equity. Will a judge still force the sale?
— Concerned

A. We’re sorry to hear that you and your spouse can’t come to an agreement about the house.

Here’s what you need to know.

New Jersey is an “equitable distribution” state, meaning marital property is to be divided in an equitable or fair manner between spouses at the time of divorce.

“Equitable” is not the same as “equal,” and what is considered equitable in any given case is dependent upon the specific facts of each case, said Thomas Roberto, a family law attorney with Adinolfi, Lieberman, Burick, Roberto & Molotsky in Mount Laurel.

He said the disposition of marital real estate is often a hotly contested issue between divorcing spouses.

It is not, however, automatic that a judge will force the sale of marital real estate at the time of divorce if the parties do not agree, Roberto said.

“In the event of a dispute between spouses as to the manner in which marital real estate should be disposed, it is perhaps just as likely that a judge would award the home to one spouse as part of a global decision on equitable distribution; again, this is dependent upon the particular facts of the case,” he said.

If both spouses wanted to keep the home, and neither has a more compelling reason as to why he or she should be the one to retain it over the other spouse’s objection, that may increase the likelihood that a judge would order the home sold, he said. But even then, a judge retains the right to divide the net sale proceeds, or deficiency, as the judge deems to be equitable.

But, if one spouse has the financial wherewithal to retain the home and buy out the other’s interest, it would be more likely that a court awards the home to that spouse, Roberto said, noting that would particularly be the case if the other spouse can’t afford to keep the home or pay a buyout.

“Simply stated, demonstrating a financial ability to retain the home is a significant factor, as is demonstrating the other spouse’s financial inability to retain the home and/or effectuate a buyout,” he said.

Roberto said there are a number of facts which would increase one spouse’s chances of being able to retain marital real estate in divorce.

He said this includes, but may not be limited to: the ability of one spouse to afford the home and/or buy out the other party’s interest; the ability of each spouse to maintain the home post-divorce; the ability of each spouse to refinance any encumbrances (mortgage, home equity loan, etc.) associated with the property out of joint names and into his or her sole name (on an individual basis or with the assistance of a co-signor); whether there are minor children and, if so, whether the primary custodial parent seeks to retain the home for the benefit of the children; and the manner in which the home was acquired and the contributions made by each spouse to the acquisition and/or maintenance of the home.

If the facts are such that one spouse clearly has the ability to retain the home and the other does not,, and has gotten conditional approval for a refinance, and the other spouse does not want to retain the home and instead simply opposes the other party’s retention of the property, the “equitable” result may very well be to provide the spouse who has the financial ability to retain the home with an opportunity to do so, Roberto said.

“Even then, a court will likely apply definitive timeframes and deadlines; for example, the spouse retaining the home would have a finite amount of time in which to refinance any encumbrances and remit payment to the other spouse for his or her equitable interest in the home,” he said. “If those deadlines are not met, a court may then likely order the home sold at that point in time. Even then, a court would have the ability to allocate distribution of net sale proceeds in an equitable — not necessarily equal — manner.”

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This story was originally published on Dec. 27, 2022

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