Divorce and the Marital Residence

One of the most troublesome issues for a couple facing divorce is what will happen to the marital home. This is especially a concern for couples with children who have spent their lives in one home, and may have developed deep emotional connections with the home. In an effort to minimize the adverse impact of divorce on the welfare of the children, the court may find it appropriate to defer the potential sale of the marital home until it becomes less detrimental for the children.

An order deferring the sale of the marital home is called a “Duke Order,” named after the California case In re Marriage of Duke. This means the court will temporarily delay the sale of the home and award temporary use of the family home to a custodial parent. This is regardless of whether or not the custodial parent has sole or joint custody.

When a party has requested a deferred sale of the home, the court first determines whether it is economically feasible to maintain payments on the home during the deferred period. In making this determination, the court considers all of the following: the resident parent’s income, the availability of spousal or child support, and any other sources of funds available to make payments on the house. The court will want to avoid a possible default on the payments, and prevent any other circumstance which would lower either parent’s equity in the home.

Once the court finds that it is economically feasible to order a deferred sale of the family home, it must determine whether the order is necessary in order to minimize the adverse impact of divorce on the children. The court will consider all of the following: how long the children have lived in the home, which grades the children are in, the distance between the home and the children’s school, daycare or other frequent activities, the emotional detriment to the children associated with having to move, and any other considerations the court finds relevant.

This order will last until agreed on by the parties, or until the court finds in its discretion that a sale of the home should no longer be deferred. Reasons for ending the deferment include if the party living in the home remarries, or the economic status of the parties has changed so that it is no longer reasonable or equitable to defer the sale of the home, even in light of the potential adverse effect the sale would have on the children.

If you are contemplating divorce or separation and would like to discuss the effect of your divorce on your children or your marital home, schedule an appointment with an attorney at Cage & Miles, LLP today.

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