For many couples, the martial home is the only significant asset of the marriage. This can make dividing assets complicated in a divorce if one party wants to keep it for themselves. A recent divorce (dissolution of marriage) case from the Jacksonville area was appealed in part because at the time of divorce, the judge ordered that the husband keep the home but pay the wife her portion of the equity in the home within 6 months. At the same time, the judge ordered that the house be sold if the payments to the wife did not occur.
In this case, the husband was not able to complete his obligation and appealed the judge’s order to have the house sold on the basis that neither the husband nor wife asked that the house be sold in the divorce case.
The district court of appeals agreed that the court could not order the house be sold at the time of divorce because neither the husband or wife had made such a request in their divorce case.
Make a Formal Request
When going through a divorce where real estate may need to be sold in order to properly divide assets during the divorce, it is wise to consider including a formal “partition” request in the initial divorce pleadings asking that the property to be sold if needed. This provides a basis for the judge to order the house sold if it becomes necessary later in the case.
A Final Note
In this case, all is not lost for the wife. The district court of appeals noted that even though the judge did not have the authority to order the sale of the house at the time of the divorce, the wife can now file a motion asking the court to enforce the equitable distribution payment to her and the judge can then order the house be sold.