‘I’m Not Selling!’ Getting the Home Sold When One Partner Refuses

Find out how much equity you’re entitled to

Divorcing couples won’t always split everything 50-50, and there are a number of factors that affect how much of a home’s value each is entitled to. These include:

Who’s on the deed

You can find this information by checking with your county recorder’s office or by going through a title company. However, even if your partner isn’t on the deed with you, you may not be able to sell the house without their blessing.

If the house was purchased during the marriage, then they may still have rights to equity from the home sale even without being named on the deed. You may even still need their signature to sell the house.

“Many states require the signature of a spouse at closing even if the spouse is not on the deed or the mortgage. Some states do not. Without the agreement of the other partner, it may be necessary to file a partition action for which you would need a real estate attorney,” Sirkin says.

Your state’s property division laws

Nine states have community property laws, with three more allowing you to opt into community property division, which essentially splits all marital assets 50-50.

The remaining states follow separate property laws, meaning that a house purchased by one spouse before marriage remains solely theirs. Even a home bought during the marriage under one spouse’s name can remain separate property if it wasn’t used to benefit the other spouse or the marriage. How your state categorizes property could influence how much equity you’re entitled to from the home sale.

Premarital assets invested in the property

“States vary drastically with regards to how much equity each spouse is entitled to. Some states even take into consideration how much each party has contributed to the property from separate or premarital assets,” Sirkin says.

For example, let’s say you brought a private savings of $100,000 into the marriage, and those funds were used as a down payment on the house. In some states, that money is considered a premarital asset, so you may be entitled to receive that money back (or a portion of it) out of the home sale proceeds.

But this isn’t true in every state. In some areas, this premarital asset is regarded as a gift to your spouse rather than a premarital asset, so the court will not factor that into the distribution of the home-sale proceeds.

Consult an experienced divorce attorney to help you understand the property laws in your state and how they could affect your home sale.

Weigh your options: 3 ways to convince your stubborn partner to sell

Let’s say you’re entitled to a generous portion of your home’s equity. Great! But you’ve still got the problem of getting the house sold while your partner is refusing to cooperate. According to the experts we spoke with, these are your main options for moving forward and getting the home sold:

1. Ask your partner to buy you out

Reluctant partners who want to keep the home for the sake of the kids, for sentimental reasons, or simply to maintain their current lifestyle may be persuaded to buy out your equity in the home.

While the home won’t go on the market like a traditional home sale, the buyout will require your partner to refinance the mortgage and place the deed solely in their own name. And letting them buy you out of the house can work in your favor.

“Homes often have more sentimental value than fair market value. If you are the spouse that wants to sell, you may be able to use that to your advantage to negotiate a better overall deal,” Sirkin says.

If you’re open to letting them purchase your share of the home, your partner might be more willing to negotiate on other issues, like custody agreements or alimony.

2. Exchange your equity for another valuable asset

“My clients and I have been able to successfully sell a house by negotiating other assets in exchange. For example, in one case, the parties had a valuable coin collection. When one party didn’t want to sell the home, the other party negotiated receiving the coin collection, which had as much value as the equity in the home,” Sirkin recalls.

This type of trade is known as an offset, and it’s a viable option for a spouse who wants to keep the house but doesn’t have the financial means to refinance or purchase their partner’s share outright. Common assets that are exchanged as offsets for home equity include vehicles, retirement accounts, or vacation home equity.

3. Offer a financial bonus to agree to the sale

Sometimes, it’s in your best interest to forgo the 50-50 split you’re entitled to and offer a financial bonus from the home-sale proceeds to your uncooperative partner to secure their cooperation.

“If one homeowner doesn’t want to sell, we might offer them an extra $5,000 to $10,000 or more out of the proceeds to move forward,” Van Wig says.  Sometimes this may be a less expensive option than bringing in an attorney right away, so long as the other party is willing to cooperate and come to a reasonable agreement.

“If we have to go through the attorney, the sale is usually going to happen anyway because the court will order it. It’s just going to take longer, and it will mean less money for everyone involved,” Van Wig says. However, if an agreement can’t be reached, you’ll want to talk to an attorney as soon as possible.

Power to your partner: Let them choose the best deal

Here’s an approach: Present all of the options — buyout, offset exchange, closing bonus, and any others you’ve been able to work out. Then, let your partner weigh in on which path they prefer. You might even suggest that they bring their own attorney or real estate agent into the proceedings so that they feel independently represented.

An experienced divorce attorney or a top real estate agent with divorce sales experience can help you frame these options with your partner’s perspective in mind.

What’s great is that all three options could be a win for you, too. When the home sale or asset exchange can move forward, you save on divorce attorney fees and get your freedom to start a new life unencumbered by a messy court battle.

No matter which option your partner selects, make sure to get the agreement in writing, preferably with an attorney. In the event of a sale, buyout, or offset arrangement, you’ll need to outline details such as:

“We frequently draft partial agreements that deal with only the sale of the home and the proceeds when the parties cannot agree on all terms of the divorce,” Sirkin says.

No dice? Ask a family law judge to compel a sale

Maybe your former spouse would love to buy your share of the home, but they can’t afford to. Or perhaps the partner refusing to sell won’t accept the financial incentive or an equity trade. Whatever the reason that negotiations broke down, the result is that the court will compel the sale of the home.

“When a judge orders the home sold, the divorce attorney submits three or four Realtors®, and then the judge will choose one after checking their internet presence or sales record. Then the attorney calls in the agent to sell the house,” Van Wig says.

Don’t skip negotiation attempts because you think a court ordered sale will speed the process up, though. The house is often the last to go when dividing assets during a divorce, and there’s a good reason for this.

“In many states, courts will normally not compel the sale of the home until a full trial on all financial aspects has occurred — unless there are extenuating circumstances like a foreclosure,” Sirkin says.

“The Court would not want to compel the sale of the home when child support, spousal support, and allocation of assets and debts had not occurred. If the court compelled the sale without support, then one party could be made homeless.”

Challenges with compelling a sale

Even after the court compels a sale, your partner can still throw wrenches into the process.

“I’ve had a few cases where it was a fight until the very end and we went to court for every little thing. We went to court to get the listing agreement signed, then to get an offer accepted, then to get the disclosure signed, and so on,” Van Wig recalls.

If the reluctant partner is still being uncooperative — refusing to sign documents, resisting showings, etc. — the judge can always sign on their behalf or force the unwilling partner to move out prior to listing the home for sale. But this all takes time — and money.

And remember, your partner may still be entitled to equity even if they’re not listed on the deed, which gives them the right to take legal actions that could impede the home sale.

“Even if your partner is not on the deed or the mortgage, if they have a potential right to money from the home, then they could file a lis pendens on the property pending the outcome of the litigation,” Sirkin says.

“A lis pendens tells a potential buyer that a suit regarding the property is pending. This negatively affects the seller’s ability to sell the home as the buyer is on notice that title to the property may not be clear.”

This doesn’t just hold up the sale — it can also affect the quality of the offers you get. When buyers become aware of a dispute over the property or that there’s an order compelling the sale of the home, you’ll likely see more lowball offers than great ones. Buyers will sense that you’re desperate to unload the home and will want to avoid an extended escrow due to the divorce proceedings.

Cooperation is tough, but cost-effective

If only you could just put out a for-sale sign up and move on, right? As painful as the process is, there is likely no way to sell the home without some cooperation from your partner — even if it’s compelled by the court.

“You can list the home with one signature, but you can’t sell it without both signatures,” Van Wig warns. “So listing a home without the cooperation of both partners is a waste of time. And if a seller pretends that they’re the only one on the title and signs a contract with a buyer, they could be held liable for damages done to that buyer.”

The bottom line is this: The less you cooperate with one another, the less money you’re likely to get in the end.

No matter how you get to the finish line, make sure to protect your interests by consulting a seasoned divorce attorney and a real estate agent with divorce sales experience to walk you through your best options.

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