For the vast majority of Seattle area residents, their home is their single largest asset. If you're in the process of divorcing your spouse and are concerned about how the loss of your spouse's income will affect your finances, you may be wondering how soon you can sell your home.
Although you're not necessarily prevented from selling the marital home while your divorce is pending, some factors may complicate the process. For example, if there are disputes over the division of property, there may be a court order prohibiting the sale of assets. To protect yourself, you should discuss this decision with your Washington state divorce attorney before formally putting your house on the market.
Determining if You Have a Legal Right to the Property
Before you think about selling your home while your divorce is pending, it's crucial that you understand your property rights.
Community Property and Equitable Distribution
In Washington state, the family home is generally considered community property and is subject to equitable distribution in a divorce. This means that the court will consider a variety of factors when determining how to divide the home and other marital assets between the parties, including:
- The length of the marriage
- The financial circumstances of each spouse
- The contributions each spouse made to the acquisition, maintenance, or improvement of the property
- The needs of any minor children involved, such as their living arrangements and proximity to school or other important activities
Although the family home is typically considered community property in a Washington divorce, the situation becomes more complicated if your home was an inheritance from a parent, grandparent, or another family member. In general, inherited property is considered separate property rather than community property. However, there are some exceptions to this rule. For example, if the inherited property was commingled with marital assets or if the non-inheriting spouse made significant contributions to the maintenance or improvement of the property, it may be considered community property and subject to division in a divorce.
Effect of Prenuptial or Postnuptial Agreements
Both prenuptial and postnuptial agreements can impact the division of the family home in the event of a divorce. For example, a prenup or postnup may specify that the family home will remain the separate property of one spouse—even if both spouses contribute to the mortgage payments and maintenance of the property during the marriage. Alternatively, the agreement may establish that the family home will be sold and the proceeds divided between the spouses in the event of a divorce.
It's important to note that prenuptial and postnuptial agreements are not automatically enforceable in all cases. If you have a prenuptial or postnuptial agreement, you should consult an experienced Bellevue divorce attorney to determine how this affects your ability to sell the family home.
Selling Your Home While Your Divorce Is Pending
If your house is considered community property, you will need your spouse's consent to sell it while the divorce is pending. A real estate agent can can provide a comparative market analysis (CMA) based on recent sales of similar properties in the area. They can also provide insights into market trends, buyer preferences, and other factors that can impact the value of your home.
After the sale is finalized, you'll need to repay mortgage debt and pay taxes or any sale-related expenses before splitting the remaining funds with your spouse. Keep in mind that Washington's equitable distribution doesn't necessarily mean you'll be required to split the proceeds 50/50. You could receive more or less than 50% of the value of the home, depending on the circumstances surrounding your divorce.
A Word of Caution
One often overlooked factor when you're selling your home before your divorce is finalized is the difficulty of obtaining financing for a new home purchase. Mortgage lenders tend to be reluctant to approve a home purchase while a divorce is pending because they do not know what the borrower's finances will look like afterward. If your goal is to obtain a mortgage for a new home, waiting until your divorce is finalized may make more sense.