It is not an uncommon scenario: one party to divorce wants to sell the marital property, the other does not. What happens? Can the court force the sale of the property?
The answer depends on the timing of the request and also the state. The following applies specifically to Indiana, as family law matters are generally governed by state law.
Before the parties finalize the divorce
There are situations when a party to the divorce can get a provisional – or temporary – order for a request during the divorce process. These orders are court orders that generally apply shortly after one party files for divorce. Examples of provisional orders allowed by Indiana law during a divorce generally include orders for:
- Temporary maintenance
- Temporary support or custody of a child from the marriage
- Possession of property
- Protective orders
Case in point
The courts recently addressed how to handle a request for a provisional order for the sale of a home in Rambo v. Rambo. In this divorce case, a wife asked for an order to sell the marital residence. The husband pushed back and instead asked for temporary, exclusive possession of the property.
The wife pointed to concerns about serious mold infestation within the home, making it uninhabitable and decreasing the value of the property. She stated that funds from the sale could help cover the cost of a mediator and other fees associated with the divorce. The husband countered that he had spent his retirement savings redoing the shop attached to the home so he could work from home and had not had an issue with the mold.
Upon review of the evidence, the lower court agreed with the wife and ordered the couple to sell the property. The husband appealed this decision. The Court of Appeals reviewed the case and stated the provisional order to sell the marital residence was contrary to state law. Instead, the Court of Appeals noted that state law provides for possession of property as a form of relief with a provisional court order, but not the sale of property.
Since sale of property is not specifically listed as an option for relief in the law as listed above, the Court of Appeals stated it could not order the sale. It could, however, order the possession of property. As such, it reversed the order to sell the marital residence.
This leads to a second question: What if both parties agree to the sale during the period after filing for divorce but before finalizing the divorce? The Court of Appeals included a footnote that specifically addressed this situation, noting the holding was limited to cases where one or both parties to the divorce objected to the sale.
If both agreed, the sale could move forward.
After the parties finalize the divorce
It is important to point out that state law allows the court to govern the distribution of marital property subject to the dissolution of the marriage upon the finalization of the action. The case above looked specifically at that time period between filing for divorce and finalizing the divorce. The court cannot require the sale over the other party’s objections at that point in time – but it can as part of the final divorce decree.
The law specifically states that the court can order the sale of the property “under such conditions as the court prescribes and dividing the proceeds of the sale” between the parties as it deems fit as part of the final property settlement agreement.
Property division can be a contentious issue in any divorce. An experienced family law attorney can help individuals going through a divorce to understand their rights in this process.