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The Divorce Encyclopedia
Provision for Sale (Marital Home)


Term Definition Provision for Sale (Marital Home) - a good idea even in good times, a must in souring housing market.
Application in Divorce For many divorcing couples, the deposition of the marital home is pivotal to their property settlement because it is the largest asset they have. Increasingly, divorcing couples have found their plans for a fresh start after divorce run aground on the downturn of the housing market.

These couples face not only marital collapse but also financial ruination because the housing bubble continues to deflate. Among their woes and worries is the prospect of selling a house at a time when declining housing prices threaten to drain away any equity they may have had (or worse, leave some overextended owners in the vise of negative equity). Moreover, when a couple put the marital home on the overstocked market, it may be some time before a buyer comes along -- and one in a position to buy at a much lower price than they imagined.

More than ever, when divorcing couples decide the marital home must be sold, they should specify the terms and conditions of sale. Very often couples merely set forth a formula for dividing the proceeds, but throw to chance the how, when, by whom and manner of the sale.

And when the house sits unsold, week after week and month after month, the prospect of fresh start seems far away.

The terms of the sale should not depend on the whims of one party. This may become a problem when one spouse retains the right to live in the house while the property is on the market. If need be, one party may retain the right to force partitioning of the property "upon failure to effect an agreeable sale within a reasonable time." Sometimes a divorcing spouse plays games when it comes to selling the house, listing it at higher than an appraised value.

Pending the sale, the spouses must make clear who pays the taxes, mortgage and maintenance and rent, if applicable. Couples should also clearly spell out the credit and/or debit of mortgage payments.

When one spouse bears the responsibility for selling the house and it fails to do, the other can be given the responsibility.

None of these measures speak directly to the housing market of course. After years of appreciation in the housing market, some property owners find it very difficult to accept that the marital home they may have loved during the happier times of a marriage does not command the price they expected. This adds the taste of vinegar to the bitterness of a marital collapse. In the cold eye of the market, however, the most loved home in all the world is just a building on land, worth exactly what someone will pay for it. And not one cent more.

See also Bankruptcy; Enforcing the Decree; Marital Home; Mortgage; Passive Appreciation.

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