Selling a Home During a Divorce: What You Need to Know

By Jeff Seehorsch

Getting a divorce and selling a home can be stressful events on their own. When you need to navigate both at the same time, it’s often easy to feel overwhelmed.

The good news is that the process can be relatively straightforward after making some key decisions early-on. In this guide, we’ll answer some of the biggest questions you may have so you can take the right course of action for you and your family.

Deciding Whether to Sell or Keep the Home During a Divorce

One of the most complex matters during a divorce is simply deciding when – or if – the home should be sold. There are several financial and emotional considerations woven into the decision that can be tough to balance. On top of that, each spouse may have strong opinions that don’t always align. Here are answers to some of the most common questions people have when thinking about the best way to proceed.

Is the home a marital property or separate property?

Knowledge of who owns what is crucial during a divorce. That’s why the first thing to determine is if the home is martial property, meaning it was acquired during the marriage and typically owned by both spouses, or separate property, meaning it only belongs to one spouse.

Separate property could be something owned before the marriage or acquired in one spouse’s name, such as a gift, inheritance or something acquired with the intention of keeping it separate. Laws vary by state, so if you’re unsure about the ownership of your residence, it’s best to consult with an attorney to make sure your home is martial property.

Should you sell the marital home before or after a divorce is finalized?

There are often financial benefits to selling a home before a divorce is finalized. Depending on your situation, however, it might make sense to wait or not sell the home at all. There’s no right or wrong answer, so it’s important to explore both options and figure out what’s best for you.

Reasons to sell before a divorce is finalized

Potential tax savings. Selling an investment often means paying a capital gains tax, which can exceed 23 percent of your total profit. However, when you sell your primary residence you can receive a capital gains tax exemption of $250,000 per person. For a married couple, that exemption amounts to $500,000. Depending on the value of your home, you might need to sell before a divorce is finalized to get the full exemption and maximize your profits.

Money to move on. Selling the home is typically the best way for each spouse to raise the funds needed for a new home. If you’re looking for a clean break and a fresh start, getting half of the profits of your home sale can help you achieve both goals.

Escaping the mortgage. Many homes are purchased with a joint mortgage because one spouse cannot afford the payments alone. In this situation, there is often little choice but to sell the home unless both parties agree to share ownership after the divorce is complete.

Reasons NOT to sell before a divorce is finalized

Rising home value. Most homes increase in value over time. If you live in a neighborhood that’s trending up quickly, it might be wise to hold off so you can sell for more. Just be sure to consult with an attorney if this is your reason for keeping the home. You might need to pay additional taxes if you sell after the divorce is final.

A spouse wants to stay. Whether it’s for the sake of children, affection for the home or any number of reasons, it’s common for at least one spouse to want to keep the family home. Going this route typically means the remaining spouse will need to qualify for the mortgage alone and buy out the other spouse, or both parties will need to agree to share ownership.

What happens if one spouse wants to sell and the other wants to stay?

This is not uncommon. The simplest way to resolve this issue is for the remaining spouse to buy out the other. If insufficient funds are an issue, the spouse who wants to keep the home will often refinance the mortgage and use the equity for the buyout. In situations where an agreement cannot be reached, a family law judge can be asked to compel the sale.

Can a divorced couple own the same home?

It’s not unusual for both spouses to continue owning the marital home after a divorce, especially when children are involved or when one spouse cannot afford the mortgage payments alone.

Divorced couples typically become “tenants in common.” This means each spouse owns half of the home, as opposed to each spouse having 100 percent interest in the home while married. Sometimes only one spouse will live in the home. In other situations – which typically involve children – spouses will take turns staying in the home.

There are risks involved with a divorced couple owning the home, even beyond the potential tension that can exist between a former husband and wife. If both spouses agree to pay towards the mortgage, either party making a late payment will harm the other’s credit score.

You’ll also need to make plans to avoid potential disagreements or manage unexpected events. For example, it’s recommended that you have a settlement agreement that dictates when the home can be sold, what happens if a spouse dies, and how to proceed if a spouse goes bankrupt.

Are the profits from a home sale split evenly?

In most states, the division of proceeds is usually split down the middle. Ultimately, this will be decided by the terms of the divorce. Sometimes one spouse will receive more if he or she invested more in the home or handled more of the mortgage payments during divorce proceedings.

Working with a Real Estate Agent to Sell a Home During a Divorce

Choosing the right real estate agent to sell a home is always important. When there are two homeowners who don’t always see eye to eye, the choice is even more important. There will be many decisions that need to be made throughout the home selling process, and having an agent who can explain things calmly, clearly and without bias can make the process much easier.

How do you decide on a real estate agent?

A real estate agent must often serve as a mediator when selling a home during a divorce. Disagreements happen and emotions can run high, so finding an agent who is patient and skilled at communicating can ease a lot of stress.

Asking your attorney for a recommendation can be a good way to find a qualified agent for your situation. Do some research to make sure any potential agent has several years of experience selling homes during divorce. Look for an agent certified through organizations like the Divorce Real Estate Institute or programs like Professor Kelly Lise Murray, J.D.’s CE Training for Brokers/Agents.

Keep in mind, if the home is marital property, both you and your former spouse will need to sign the listing contract. That means you’ll need to agree on the agent who helps sell your home. If you cannot agree on an agent, each party’s attorney may need to negotiate how to proceed. It’s best to avoid this for several reasons – the main one being that many top agents will be reluctant to sign on when two spouses cannot agree on who to hire.

What decisions need to be agreed upon during the home selling process?

Selling a home means making several important decisions. When two people disagree and get stuck, referring to an unbiased expert can be a way to move forward. That’s where your agent comes in.

At the start of the home selling process, it’s a good idea to sit down with your agent and discuss matters that will require mutual agreement between you and your former spouse. Whether you consult your agent separately or meet as a group, answer the following questions at a minimum and consider trusting your agent’s expertise if you reach an impasse.

How much should the home be listed for?

The goal is to set a competitive price that doesn’t leave money on the table. Your agent should be highly knowledgeable about your local market and how much similar homes in your neighborhood are selling for, so it’s wise to lean on that knowledge as you settle on the final number.

What is the lowest offer you’d be willing to accept?

It’s wise to establish the minimum amount you’ll accept for your home right from the start. This will help your agent negotiate with potential buyers and help you and your spouse avoid indecision or debates down the line.

Does the home need cleaning, repairs or staging?

Your agent should advise you on what could raise your home’s value or help you sell quicker. It’s important to determine how much work will be done and who will handle the cost or put in the time to make it happen.

Is there a deadline to sell?

As you adjust your living arrangements and handle financial matters, there may be some urgency to sell within a set timeframe. Try to be transparent about your situation and communicate all time-related needs to your agent as soon as possible.

Making the Home Selling Process as Smooth as Possible

It’s tough to anticipate every issue that may come up, but there are some steps you can take early in the selling process to avoid stressful situations down the road.

Should one spouse (or both spouses) move out after a home is listed for sale?

Your personal circumstances will be the most important factor to determine if one spouse should move out before a divorce is finalized. In some cases, a spouse will get a court order that provides exclusive rights for use of the property during the divorce. So long as both spouses’ names are on the mortgage and title, each will be entitled to their fair share of proceeds after selling the property.

In terms of getting the best offers for your home, it’s usually best if one spouse remains for a couple reasons. If both spouses move out, it’s more difficult to sell an empty house. Renting furnishings is an option, but it can get costly and will create yet another task to be sorted out. If both spouses stay, it can get complicated scheduling home tours for potential buyers due to conflicting schedules or disputes about how to show the home.

What are some tips to make the home selling process easier?

No two situations are identical. Local laws, housing markets, home values and even the season you sell can affect how smooth your home sale is. At the same time, the dynamics of your relationship with your spouse, your family, your career, and your finances also factor into the home selling process. While there isn’t a universal guidebook to navigate selling a home during a divorce, there are a few things most homeowners can do to make the process a little easier.

Consult with an attorney first.

Before you sell the home, you’ll need to decide who gets what inside the home. These decisions can affect how much you get from the sale and how the selling process is handled. Consult with an attorney who can mediate the division of assets, advise you on getting a real estate agent, and walk you through your local laws and best options.

Get input on staging the home.

Staging a home involves removing clutter and arranging furnishings to maximize the home’s appeal. Studies have found that staged homes often sell faster and for more money, so it’s worth asking your real estate agent for recommendations. Even making small changes can make a big difference, like adding a lamp to brighten a space or moving a couch away from a wall to make a room bigger. Staging also gives you a reason to remove unwanted items and pack up personal property like family photos.

Keep your emotions in check.

Saying goodbye to a home is deeply personal – and even more so during a divorce – but it’s important to remember that selling the home is a financial transaction. Try to lean on your agent for advice and mediation between you and your spouse when emotions run high. You and your spouse are both likely to benefit from a sale that nets you the largest profit possible. Remaining calm and rational typically speeds up the process so you can start the next chapter of your life.

Keep in Mind That You’re Not Alone

Going through a divorce and selling a home can make people feel like they’re suddenly on their own. The truth is, millions of people share many of the same struggles, and there are dedicated professionals who specialize in helping divorcing couples to the best possible outcome. Do your best to seek out others who can relate to your situation or who can guide you through it. Once you reach the finish line, you should be ready to start the next chapter of your life with a clean slate.