Deferred Home Sales
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Working Through Deferred Sale of Home Orders Post-Divorce
During the divorce process in California, you and your future ex-spouse may decide to downsize and thus sell your family home. However, it is within the power of the court to issue a deferred sale of home order, also known as a “Duke Order.” In this situation, you or your spouse may stay in the marital home with your children for a few years if the judge determines that this is in the children’s best interest.
Factors Judges Consider Before a Deferred Sale of Home Order Is Issued
According to the law, the court has to take into consideration several parameters when considering deferred sales. For instance, the court will have to determine if it’s economically feasible for you or the other party to maintain your mortgage payments during the deferment period. As a result, the court will look at your income and how much child support or spousal support you’ll receive if you plan to stay in the house.
Other factors that the court will look at include how long your children have resided in the house, as well as what your children’s grade levels are. Also, how detrimental would it be for your children to have to relocate? The judge’s goal in examining these factors is to issue a deferred sale of home order only if this will help to minimize your divorce’s impact on your children.
Frequently Asked Questions About Deferred Home Sales
What Exactly Happens If a Court Issues a Deferred Sale of Home Order?
If a court decides to issue a deferred sale of home order during a divorce proceeding, this means two things for the parties involved:
- First, it means that a temporary delay is required before an attempt at selling a house after a divorce agreement is made.
- Second, it means that the exclusive possession and use of the house will belong to the custodial parent—the parent who is receiving child support.
Note that the California court has to specify how long your home’s sale must be deferred in this situation. If you have custody of the children, you will likely be responsible for the home’s mortgage payments, homeowners insurance, and property taxes.
What Matters Should Be Discussed Following a Deferred Sale of Home Order?
If you and your ex-spouse have to hold off on selling a house after a divorce agreement, it is wise for both of you to discuss several points to avoid problems down the road. Then, whatever you agree to do while co-owning a house after divorce should be incorporated into your divorce settlement. For example, you should ask yourselves the following questions:
- Will cover the cost of any necessary routine maintenance?
- Who will be responsible for paying for any necessary major maintenance?
- Which process will you use if you determine that an improvement needs to be made to the house?
- What are your rights and your ex-spouse’s rights regarding the usage of the home and entry into the home?
- What will you do if you want to sell the house later but your ex-spouse does not want to, or vice versa?
- How will you handle the home selling process?
- How will you split the proceeds of your home sale when you do decide to sell?
- If you have any disputes related to your home, how will you resolve them?
Who will cover the homeowner association fees when you are co-owning a house after divorce?
What Additional Factors Will a Judge Consider Before Issuing a Deferred Sale of Home Order?
In addition to the above-listed factors that judges consider before deciding to defer home sales following divorce, a key factor that your judge will look at is how close your home is to your child’s school. A judge will also consider whether your house has undergone modifications to accommodate the physical disabilities that your child may have.
Why Choose the Law Office of Michael C. MacNeil
Deciding what happens to the family home is rarely simple during a divorce, especially when children are involved. Attorney Michael C. MacNeil has guided San Diego families through the deferred sale of home order process for years, applying the same personal, detail-oriented approach to every case he takes on.
- Personal Attention From Attorney MacNeil Himself. Every case is handled personally by Mr. MacNeil, not passed off to a paralegal or case manager. You get direct answers from the attorney actually working your file.
- Built From Firsthand Experience. After going through his own difficult divorce and watching other attorneys drag out simple tasks to increase billable hours, Mr. MacNeil built a practice centered on his clients’ interests, not the clock.
- Focused on What’s Best for Your Children. Whether you’re working through selling a house after a divorce agreement or figuring out the practical side of co-owning a house after divorce, Mr. MacNeil keeps your children’s stability and best interests at the center of every recommendation, including whether a deferred sale of home order makes sense for your family.
- Serving San Diego and All of California. Mr. MacNeil meets with clients in person at his San Diego office or virtually from anywhere in California, so distance never has to stand between you and the help you need.
- Fair, Transparent Fees. Clients consistently point to Mr. MacNeil’s reasonable rates and his refusal to pay hours with unnecessary tasks, so you always know what you’re paying for and why.
FAQs
Can I live in the house after a divorce?
In some cases, the court or the parties’ agreement allows one parent to remain in the home for a set period of time. This can help maintain stability for the children while delaying the sale. The home is still usually treated as shared property, and the arrangement typically ends based on a specific date, event, or financial condition.
Do I have to sell the house if we have kids?
Having children does not automatically mean the home sale will be delayed. Courts consider the children’s routines, school stability, and overall best interests, but they also look at whether keeping the property is financially realistic. If the home cannot be maintained, a sale may still be necessary.
How long can I keep the property before a sale is necessary?
There is no single timeline. Some deferred sale arrangements last a few years, while others continue until a child reaches a certain age, graduates, or another triggering event occurs. The exact timeline depends on the court order or settlement terms.
What happens if I am unable to afford the mortgage on my own?
If you cannot afford the mortgage, taxes, insurance, and upkeep on your own, the court may determine that a sale is more practical than continued occupancy, even if remaining in the home would otherwise benefit the children.
Can my ex force the sale of the house?
One party can ask the court to order the sale of the home, but the result depends on the existing order, the children’s needs, and the parties’ financial circumstances. In some cases, the court will allow a delayed sale to continue. In others, it may decide that selling the property is the better option.
Get Help with the Deferred Home Sale Process Today!
Navigating the deferred home sale process can understandably be overwhelming during the divorce process. That’s where I come in. Get in touch with me today so that I can help you get through the process with confidence.
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