Sale of Solely Titled Real Property During Marriage or Divorce
The sale of real estate during a divorce can be a challenge. Each spouse may have a different idea of what price is best to list the property, what work should be done to get the property ready for sale, and even which real estate broker is best to list the property. In addition to the disagreements which may arise regarding selling jointly owned property, other challenges may arise if only one spouse holds title to the property. While these unique circumstances exist whether a marriage is intact or spouses are divorcing, conflict is more likely to arise during a divorce.
Solely titled property may have been purchased before or after the marriage. It is less common to encounter property purchased after the wedding that is solely titled in only one spouse’s name. More often, one spouse owned the property prior to meeting the other or one spouse may have even purchased the property in the hope that the couple would one day reside there together. Whether the purchase occurred before or after the marriage, it may not be as easy for the titled spouse to sell the property as one would think, as the consent of the other spouse will almost always be required to complete the sale.
When one spouse purchases property while married, there are several ways a marital value can attach to the property. If joint funds were used to purchase the property, but for whatever reason, the couple only places the property in one spouse’s name, the property is marital, meaning the value of the property belongs to both spouses regardless of how it is titled. If it can be proven that independent, non-marital funds of one spouse were used to purchase the property during the marriage, there may be some non-marital component, but any increase in value of the property will likely be marital. Most buyers would purchase real property with a mortgage. Even if the mortgage is only held in one spouse’s name, if payments are made on the mortgage using income gained during the marriage, a marital component is again applied to the value of the property. There are various other ways a solely titled property purchased after marriage may hold a value to a non-owner spouse; these are just some examples.
Similarly, a marital value can be assigned to a property owned by one spouse prior to the marriage. Any increase in the value of the property during the marriage is a value that now belongs to both spouses. This increase in value may have been the result of paying down a mortgage during the marriage or the increase in market value. As a side note, if the spouse who owns the property deeds the property to both of the spouses after the wedding, the entire value of the property then belongs to the marriage/both spouses.
Because there are so many ways a non-owner spouse may hold an interest in some portion of solely titled real property, it is often very difficult for the owner to sell the property without the consent of the non-owner spouse. Most title companies will require the non-owner spouse to sign a spousal waiver, waiving their interest in the property, in order to complete the sale. It is not uncommon for the non-owner spouse to refuse to sign the waiver, preventing the other spouse from selling the property. All hope is not lost. If compelling reasons exist, the owner spouse may petition the court to order the sale of the property before the divorce is complete, allowing the property to be sold. If you have questions about your property or you are facing the challenge of selling property with an uncooperative spouse, call us today.