Selling the Marital Residence During a Divorce

This is the final in a series of blogs in which I addressed issues parties in a divorce can face when dividing the marital residence. The focus of this blog is on selling the marital residence after a Petition for Dissolution of marriage has been filed.

Because of the Automatic Temporary Restraining Orders (ATROS) that are in effect after filing and service of a Summons and Petition for Dissolution of Marriage, a Stipulation or Court Order are required to sell real property in a divorce action. This will apply even if the house is titled in only one party’s name. Additional issues arise in a high conflict case and/or when a restraining order is in place.

For all of the above reasons and several other issues that can arise, most realtors do not have the training and experience required to effectively navigate the unique challenges in selling a house during a divorce. Selling a residence timely and for the best price requires an effective marketing team and cooperation of both parties. I find many divorcing couples make poor decisions in selecting a listing agent because they are focused primarily on the commission the realtor charges. If a realtor discounts one or two percent, they believe this will result in more net proceeds for the parties. This often is not the case. In many cases, reduced realtor fees results in a lower sales price due to a reduced marketing budget and less showings as a result of reduced fees for buyers’ agents. Many realtors are not prepared to deal with high conflict cases, such as when the spouse living in the residence does not cooperate with making the house available and presentable for showings. This may require Court intervention, including Ex Parte (emergency) hearings to enforce compliance. The best way to reduce problems and ensure effective marketing for the sale of your residence is to Stipulate that the Court appoint a listing agent as the Court’s expert under Evidence Code section 730. In this way the realtor’s primary duty is to the Court to provide facts and information based on the realtor’s expert opinion. The Court is then better able to resolve disputes between the parties and prevent one party from interfering with the sale of the house.

First and foremost, you will need to select a realtor who has the specific training and experience to handle clients in a contested dissolution matter while maintaining a neutral position. An experienced family law attorney should be able to recommend realtors who have the required training and experience. In addition to appointing the listing agent, the Stipulation and Order should clearly set forth the tasks and scope of the expert’s duties, the duties of the parties, guidelines for communication between the listing agent and the parties and their attorneys, and the procedure for handling disputes. The Stipulation should also set forth how escrow funds will be distributed.
SUMMARY: Selecting a realtor with training and experience to handle the unique issues that arise when selling a house during a divorce, can reduce conflict between the parties, reduce litigation costs and increase net proceeds for the parties.

Questions about selling your home when you divorce? Do you need more information on a variety of family law topics?  The Office of Family Law Attorneys Bawden & Kochis handle all family law legal issues from spousal support to child custody. For assistance in these areas, telephone (909)792-0222 or email us at [email protected]

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