Family Residence: Can the Sale be Deferred?

The Family Court shall divide the community estate equitably including any interest the parties have in real property. A common scenario arises when one parent wants to remain in the family home but cannot afford to buy out the other spouse.  The parties may agree to defer the sale of the home until a future time but if they disagree then the issue will have to go before the court so long as the parent seeking relief has physical custody of one or more minor children.

In order to be successful in a motion to defer the sale of the home, the in-spouse (or the spouse that wants to retain possession of the home and moving party) has to prove that it is economically feasible to maintain the property.  In making this determination, the moving party needs to demonstrate he or she can afford to maintain the mortgage, property tax and insurance payments during the period of deferred sale in addition to maintaining the home. If not, the court will order the home to be sold.

If the moving party prevails and the court finds it is economically feasible to defer the sale of the home, then the court must consider all of the following factors:

• Length of time child in home
• Child’s grades
• Proximity of home to child’s school or day care
• Modifications to home for disabled child or in-spouse
• Emotional detriment of child
• Proximity of home to in-spouse’s employment
• Each parent’s financial ability to get suitable housing
• Tax consequences
• Economic detriment to out-spouse
• Other just and equitable factros

An order deferring the sale of the home is an order that awards temporary but exclusive use and possession of the home to one parent.  Once the conditions that allowed for the sale to be deferred expire, then the property is sold or purchased by the in-spouse. There are several contingencies that may arise during the course of a deferred sale and it is important they are clearly identified in any order or agreement.