Can You Sell a House Before You Finalize a Divorce?

By Wayne Thomas

The marital home is often one of the most valuable assets to divide in divorce. When a couple no longer lives under the same roof, selling the house may appear to be a practical next step. However, once a divorce petition is filed, state laws place certain restrictions on your ability to legally transfer the title of real estate without the consent of your spouse or the court.

The marital home is often one of the most valuable assets to divide in divorce. When a couple no longer lives under the same roof, selling the house may appear to be a practical next step. However, once a divorce petition is filed, state laws place certain restrictions on your ability to legally transfer the title of real estate without the consent of your spouse or the court.

Restrictions on Sale of Home

When a divorce is filed, some states put an automatic restraining order on the sale or transfer of property acquired during the marriage, regardless of who holds title. Even in states where the restraining order is not automatic, a spouse may request that the court issue one if she is concerned that marital property may be liquidated. If you violate this order without first obtaining consent from the court or your spouse, you can be held in contempt. Further, if the transfer was made with the intent to shield the asset from the divorce, such as selling your home to a sibling for less than fair market value, the court has the authority to cancel the transfer.

Divorce is never easy, but we can help. Learn More
Divorce is never easy, but we can help. Learn More
Can I Sell or Transfer an Asset Before Filling for Divorce?

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Bankruptcy During Divorce Proceedings

Filing for bankruptcy before a divorce has been finalized will complicate the divorce settlement. While state law governs divorce, bankruptcy is a federal procedure that shields the petitioner(s) from some, but not all, of the debts incurred during and before the marriage. If you are considering a bankruptcy before a family law court finalizes a marital settlement agreement, you will have to carefully consider the division of property and the assignment of debts between you and your spouse, as well as the obligation of each of you to settle with creditors after the marriage ends.

Bankruptcy & Fraudulent Conveyance

Filing for bankruptcy allows you to eliminate some of your debt by either liquidating your assets to repay a portion of your debt or by creating a three to five year repayment plan. A fraudulent conveyance occurs when property is transferred to another individual prior to filing for bankruptcy. The bankruptcy court considers a fraudulent conveyance to be very serious because it can affect the assets available to repay creditors. A fraudulent conveyance can have severe consequences to a bankruptcy case including the dismissal of the case.

Can Bankruptcy Reaffirmation Agreements Be Completed by a Non-Attorney?

Individual debtors seeking relief from creditors through consumer bankruptcy are permitted by bankruptcy courts to file without an attorney. Although the bankruptcy courts strongly recommend hiring an attorney to assist in the very technical process of bankruptcy litigation, debtors may proceed in court by filing documents such as a petition, reaffirmation agreement and other pleadings without the assistance of counsel.

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