What If One Spouse Wants to Sell the House After the Divorce and the Other Doesn’t?

Q: My husband left three years ago and is continuing to pay the mortgage. I want to sell [the house] so I can move, but he doesn’t. He doesn’t have enough money to buy me out or the credit to refinance it on his own. What do I do? ~ Brenda

Brenda, we are sorry that you have found yourself in this position. It is not uncommon in a divorce for one spouse to want to keep the house. If Spouse A agrees to let Spouse B keep the house, then the easiest thing to do is for Spouse B to buy out Spouse A. This can usually be done by Spouse B refinancing the home and pulling out enough equity during the refinance to buy out Spouse A. (Here are more ways how one spouse can keep the house after a divorce.)

However, the real world doesn’t often work so smoothly. As in your case, many single ex-spouses cannot afford to make the mortgage payments on their own. If they don’t have sufficient credit and income, they will not be able to qualify for a refinance, which means they can’t buy out their ex-spouse and take that spouse off the mortgage and the property deed.

Brenda, you may be tempted to let things stay as they are since your spouse is paying your mortgage. That would be a bad idea. If your name is on the mortgage of the property, then it will likely be very difficult for you to get approved for a new mortgage if you wanted to buy another home. Your mortgage responsibilities will also be reflected on your credit report, which could make it difficult for you to be approved for future loans, such as a car loan. Additionally, if your spouse were to stop making mortgage payments on the house, your credit would be damaged along with his!

Finally, if the house is considered marital property, then you are likely entitled to a portion of the equity. That’s money that can help you start over or to use as a down payment on your next home.

In your case, it sounds like you and your husband are still legally married. My first bit of advice would be to initiate divorce proceedings if you are ready to dissolve your marriage so that you can divide your estate. You can give your husband the chance to buy you out of your share of the house during your divorce negotiations. (If you don’t have a lot of money, then I would advise considering divorce mediation).) If your husband cannot buy you out, then you can ask a family law judge to compel a sale. This will take some time and may require you to hire an attorney to help you with the motion, but if you can get your share of the home’s equity back, then it will be money well spent!

It is often best to consult a divorce attorney in your state so that you can understand the state laws that pertain to your case. If you are worried about the cost of an attorney, a great place to get more information about divorce is to attend a Second Saturday Divorce Workshop in your area, which often features advice and presentations by divorce attorneys, financial advisors, and other divorce experts.

Comments

  1. my husband left me in DEC.and. moved out of our house. he.payed mortgage for Jan and Feb couldn’t pay any more i,ve been paying the mortgage since then… we put house up for sale two weeks ago…since he walked out on me and hasn’t paid for the mortgage ..how long before its considered abandonment and what can i do can i keep the house if hes not paying mortgage and he left me..

    • I’m not an attorney and I’m not familiar with the laws of your state, and so I have no idea what constitutes abandonment, nor whether it has anything to do with anything legally. If you want to keep the house you’ll need to pay the mortgage, or you’ll lose it, so that’s the first thing to do. And then you’ll need to figure out how to pay him for his share of the equity in the home, if there is any.

  2. Husband filed for divorce, we live in the home I purchased before marriage. His name is not on the house, will I have to pay him anything ?

  3. We have a mortgage free home, have been married for 48 yrs, and plan on divorcing. My husband is retired and has VA benefits that allow him to purchase a house with no down payment. I have a small social income and work part time. Can I ask for our house, by buying him out?

    • If you have the means to buy him out of the house, and he doesn’t object, then you can buy him out. If he also wants the house, you’ll have to ask an attorney who gets first right to buy the other out in your state.

  4. My husband and I divorce is final, in the agreement he had 14 days to decide to sale the house or buy me out, he decided to buy me out. The question is, how long does he has to send me my half? If it’s up to him he would never do it if he isn’t told by the judge. What’s my next steps?

  5. My divorce was final almost 14 days ago. Court ordered house to be sold. My ex says why should we sell it and said we ( my kids and myself) can stay as long as we want. Is this true? He has made no attempt in helping me list the home and when I bring it up he asks why do we have to sell it.

  6. The house we live in was brought by me in an attempt to leave my husband. He talked me into trying to make the marriage work. So he ended up moving into the new house with me. His house he had before the marriage, my house that his name is not on I brought after the marriage during a separation. His name isn’t on the deed or loan. I now want a divorce, he is still living in my House. If I sell does he get half. If I stay do I have to buy him out? In NC.

  7. including agent fees’ for both sides are normal, when buy her out? My ex said that if I buy her out, then why she needs to pay the agent fee. In a way, it makes sense but what if when I sell the house later maybe, then I have to pay fees anyway.

    • If there are no broker fees being charged, as when one spouse buys out the other, then there are no actual costs to divide. If the two of you agree to reduce the value of the home by the fees that would be paid if it were being sold, you can certainly do that. But it is likely that there would be no reduction for fees that are not actually being paid if you went to court.

  8. Me and ex divorce back together home paid for my name is on the house what legal right do I have

  9. Heidi williams says:

    What if you bought a house while married and house was bought from a settlement after losing tour daughter that doesn’t belong to said husband and your first on the deed and don’t wanna lose your house but don’t wanna sell it and he has no income to buy you out and being the only one in home working me and paying all bills I can’t afford to buy him out what should I do I don’t wanna lose my house that was bought from my daughters settlement

  10. I have been divorced for eight years. In the divorce I foolishly agreed to pay mortgage and taxes. While he payed only child support until my youngest one graduated college which was over a year ago. Now the house is on the market to sell. Is there any way I could go back to court to try to change him from getting 50% off the sale of the house?

    • I’m guessing that after 8 years, there would be no way to change your divorce agreement without his consent. But I’m not an attorney and I don’t know the laws of your state, so you’ll need legal advice to determine that.

  11. I have a house that i’m the sole owner of and purchased prior to getting married but recently split up, Could the courts force me to sell the house if i didn’t want to as part of the split being that there is kids involved?

  12. Franklin Phillips says:

    From South Africa. My wife divorcing and want to buy me out. Only stayed in new house for 2years. I want to sell and dont want her to buy me out. We will make a loss if she agree to sell. Can the court force me to be paid out by my ex wife? My intention is to sell and both of us walk away with the loss.
    Can see overide my decision as the bond comes off her salary and she earns more than me.

  13. Diana McKenzie says:

    What happens if the judge orders us both to vacate and sell our marital home and divide the proceeds but no one wants to buy the house?
    Who will have to pay the mortgage/insurance/taxes and upkeep until the house sells?

    • That’s a good question. If the judge didn’t say and you can’t decide between you, you may have to ask the court for further guidance. I’m guessing the court will tell you to lower the price until you attract a buyer, but that’s just a guess.

Speak Your Mind

*