Love and Real Estate: I am in a divorce with my spouse, but I don’t want to sell our house yet because I am worried about the impact selling will have on our kids. What can I do?

By Shawn Weber, CLS-F*

It is possible to get what is called a “deferred sale of home order”. California Family Code section 3800(b) provides for this option as follows:

‘Deferred sale of home order’ means an order that temporarily delays the sale and awards the temporary exclusive use and possession of the family home to a custodial parent of a minor child or child for whom support is authorized under Sections 3900 and 3901 or under Section 3910, whether or not the custodial parent has sole or joint custody, in order to minimize the adverse impact of dissolution of marriage or legal separation of the parties on the welfare of the child.

Section 3800 and related sections basically codify the holding of In re Marriage of Duke (1980) 101 Cal.App.3d 152, 161 Cal.Rptr. 444. The Court in Duke wrote:

Where adverse economic, emotional and social impacts on minor children and the custodial parent, which would result from an immediate loss of a long established family home are not outweighed by economic detriment to the noncustodial party, the court shall, upon request, reserve jurisdiction and defer sale on appropriate conditions.

[Duke at page 155.]

In essence, the intent of the statute is to minimize the impact on the children by awarding temporary use and possession of the family residence to the custodial parent. (A “custodial parent” is the party awarded either sole or joint physical custody of a child. [See Cal. Fam. Code §3801 (a).]) This house is then sold at some future time.

Before the Court will make a deferred sale of home order, the court must first determine “whether it is economically feasible to maintain the payments of any note secured by a deed of trust, property taxes, insurance for the home during the period the sale of the home is deferred, and the condition of the home comparable to that at the time of trial.” [Cal. Fam. Code §3801.]

In making this determination, the Court has to consider each of the following factors:

(1) The resident parent’s income.

(2) The availability of spousal support, child support, or both spousal and child support.

(3) Any other sources of funds available to make those payments.

[Cal. Fam. Code §3801(b).]

The Family Code specifically describes the legislature’s intent regarding the economic feasibility test to accomplish all of the following:

(1) Avoid the likelihood of possible defaults on the payments of notes and resulting foreclosures.

(2) Avoid inadequate insurance coverage.

(3) Prevent deterioration of the condition of the family home.

(4) Prevent any other circumstance which would jeopardize both parents’ equity in the home.

[Cal. Fam. Code §3801(c).]

If the Court is satisfied that the deferred sale is economically feasible, then it has to ask the following questions:

(1) How long has the child lived in the home?

(2) What is the child’s grade in school?

(3) How close is the residence to the child’s school or daycare?

(4) Was the house modified to accommodate a disabled child or a disabled custodial parent?

(5) What emotional detriment would there be to the child if he/she changed residences?

(6) How close is the house to the custodial parent’s work?

(7) How financially able are the parents to obtain suitable housing?

(8) What tax consequences would be experienced by each party as a result of the deferred sale?

(9) What other “just and equitable” factors are there for the court to consider regarding a potential deferred sale.

[Cal. Fam. Code §3802.]

Once the Court has considered all of the required factors, then it can make its order. The order has to spell out the duration of the deferral and what each party has to do to maintain the residence. Usually, the “in-spouse” has to pay the costs of living in the residence to include the mortgage, property taxes, HOA, etc.

Now, the parties can always agree to a deferred sale without the Court ordering it if they so choose. They would just want to also carefully consider the factors described above as well. It would not due for a party to insist on a deferred sale of home order that simply was impossible financially.

One important point to consider: In my experience, the children are far less emotionally impacted by a move than the parents realize. It is important when considering a deferred sale of home order, to ask whether the deferred sale is desired because the kids need it or because a parent is having a hard time letting go of the house. Often we can entangle our emotions with things. Perhaps we will make seriously flawed financial decisions in order to hold onto a thing like a house. Remember to really think about the decision of a deferred home sale. If it doesn’t make sense financially—then it won’t help the kids either. In fact, an economically imprudent deferred home sale can hurt the kids a lot more than it will help.

Other resources regarding deferred home sales:

In re Marriage of Braud (1996) 45 Cal.App.4th 797, 53 Cal.Rptr.2d 179.

In re Marriage of Boseman (1973) 31 Cal.App.3d 372, 107 Cal.Rptr. 232.

In re Marriage of Herrmann (1978) 84 Cal.App.3d 361, 148 Cal.Rptr. 550.

In re Marriage of Stallworth (1987) 192 Cal.App.3d 742, 237 Cal.Rptr. 829.

For more information regarding a deferred home sale, contact attorney Shawn Weber at 858-345-1616 or visit our website at www.bravewebermack.com .

*Certified Specialist – Family Law

The State Bar of California Board of Legal Specialization.

Comments

  1. Another great option is to have some sort of agreement between both parties that allows the other the retain possession temporarily to allow for an easier transition for the kids. Judges always look for what is best for the children in any family law or divorce matter, so this is something that must be treated properly to avoid and problems later one…

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