20 Jun Can I force my ex to sell the house?
It was a grueling process, but your divorce is finally behind you. It was a difficult settlement. You and your ex agreed to sell your real estate and split the proceeds. Time has passed and the property has not been sold. You feel like your ex is purposely thwarting or preventing the sale. You are tired of the run around. You want to force your ex to sell the house.
What are your options?
Contempt of Court
Was your ex ordered to do something? If so, he or she could be in contempt of court for failing to perform per the terms of the settlement. Is he or she refusing to place the house on the market? Purposely and in bad faith thwarting the real estate agents from selling the property?
Contempt is an inexpensive action as far as litigation goes. Your attorney will file a motion with the Court alleging that your ex is refusing to comply with the terms of the agreement. The Judge will have a hearing and determine if that is indeed true. Usually fines are instituted to coerce cooperation, but jail time is a possibility in certain circumstances.
The down side to contempt is that your ex needs to be overtly sabotaging or refusing to act in some way. If he or she refuses to sign the contract for the real estate agent, for instance, or refuses to sign off on any offers, that might be enough to show the Court that he or she is consciously refusing to comply. A contempt could be enough to get your ex’s attention and resolve the property issue once and for all.
If you want to avoid taking your ex to Court, then mediation might be a good fit. A mediator is an Attorney, but an impartial attorney that will not be representing either your or his interests. The mediator’s job is to listen to the dispute, review the facts, and present the fairest and most efficient solution to the problem.
A disadvantage to mediation is that it doesn’t have the teeth that a court action has. A person does not have to comply with a voluntary mediator’s decision. Mediation is best used with real estate sales when there is a legitimate dispute that is holding up the sale of the property. I would still recommend consulting with an attorney on your case to guarantee that the mediator’s decision is in your best interests and will resolve your problem.
A partition is used when mediation and contempt were either unsuccessful, or not appropriate. A partition action is when one person files a lawsuit in Court requesting that the real estate be “partitioned”, i.e. the ownership legally separated. Marital property is generally held as what is called “joint tenancy”, which means both the husband and wife are joint and co-owners completely liable for the entire premises. A partition action asks the Court to say “This part of the property now belongs to wife alone and this part now belongs to husband alone”.
If the property at question is a plot of acreage, a partition action is appropriate. If the property is a former marital residence, then a partition becomes trickier. A house cannot be split down the middle. In the event that it isn’t feasible to separate the property, the Court will generally force a public sale of the property.
The disadvantage of a partition is two-fold: First of all, it has obvious limitations in dealing with residential houses. Secondly, it will force a sale. There’s an old saying- be careful what you wish for. In forcing a public sale, you may have to settle for a lower price point than you originally anticipated.
It’s difficult to go through the entire dissolution procedure expecting a resolution, only to find out that loose ends can drag out for years. If you are having problems tying up those loose real estate ends with your ex, contact my office for a free consultation on what will be the best and most efficient avenue for your situation. You may be able to force your ex to sell the house. Or we may come up with a better way to enforce your agreement.
Drafted by St Louis Divorce Lawyer Melissa Harper