Should You Sell Your Family Home Before Your Divorce is Finalised?

Should You Sell Your Family Home Before Your Divorce is Finalised?

A question that our team commonly need to address is – ‘should you sell your family home before your divorce is finalised?’  In short – this depends entirely on circumstances. In some instances, one could see why it would help, but in most it would be risky.

In this blog, we explore that while it is not generally recommended to sell your family home until after you have a legally binding Consent Order in place, there are some anomalies. We will also shed some light on the advantages of using family mediation during your negotiations.

Protecting your financial interests

Selling your family home during divorce proceedings carries substantial financial implications due to the uncertain nature of asset distribution and property division until a financial settlement is reached. By refraining from selling the home prematurely, you can safeguard your financial interests and maintain a sense of stability.

Delaying the sale allows for a more considered decision-making, ensuring that the division of assets aligns with what the Law says as well as taking into account the long-term financial well-being of both parties. By exercising patience and strategic planning, you can minimise potential financial risks and make more informed choices regarding the options you have when it comes to the former marital home (FMH)

Avoiding emotional turmoil

Divorce poses emotional challenges for everyone involved especially when it involves discussing what should happen to the family home. This often holds a deep sentimental value and is closely tied to the memories of a happier family life. And for some, they just cannot wait to be rid of something that reminds them of unhappy times.

By giving yourselves the necessary time and space to process the emotional impact of divorce and the potential loss of the family home, you can approach the transition more thoughtfully. It allows everyone involved to come to terms with the impending changes and adjust to the new circumstances gradually.

By maintaining the family home, even temporarily, you create a sense of stability for both you and your family members during this period.

What risks do we face if we choose to sell the FMH before the divorce is final? 

While it is generally not advisable, mostly due to the lack of legal protection, certain unique situations might make it preferable. Here are a few potential reasons why – together with some of the implications to consider.

Financial Considerations

In some cases, selling the family home before the divorce is finalised could help both parties to settle financial matters more smoothly. For example, if the proceeds from the sale can be used to pay off joint debts, cover legal fees, or provide a fresh start for both individuals.

Potential drawbacks:

1 – Property Division Disputes: Selling the home before the divorce is finalised might create disagreements over how the proceeds should be divided between the parties. Without a legally binding agreement on how to split the funds, one party might feel they are not receiving a fair share.

2 – Tax Consequences: Depending on the specific circumstances, selling the family home could have tax implications, such as capital gains tax. Understanding these implications is essential to avoid unexpected tax burdens.

3 – Loss of Stability: Selling the family home means both parties will need to find new living arrangements, which can lead to a sense of instability during an already tumultuous time.

4 – Strategic Advantages: One spouse might benefit more from the sale, depending on the specific financial circumstances. The other party may want to delay the sale to negotiate a more favourable settlement.

5 – Changing your mind: without first obtaining a Consent Order, any agreement between you is a private agreement and either one of you could change your minds.

6 – Have you considered all the options? You might not have to seel the house; you should ensure you know what all your options are before you make any decisions.

Market conditions

Anyone that has ever bought or sold a property will know that the property market always comes with its share of pros and cons.

PRO: If the real estate market is favourable, selling the family home before the divorce is finalised could lead to a higher sale price, benefiting both parties with increased proceeds.

CON: The real estate market is subject to fluctuations, and the value of the home may change between the time of the sale and the finalisation of the divorce. If there is a significant change in the property’s value, it might lead to further disputes.

Child-related matters

Living in the same house during divorce proceedings might create an uncomfortable or unstable environment for children. It’s essential to prioritise the needs and best interests of the children when making decisions about the family home during divorce proceedings.

If selling the home is being considered, it’s crucial for parents to communicate openly about the potential impact on the children and work together to find a solution that minimises disruption and maintains stability for them.

Here are a few things to consider:

• Disruption to familiarity and routine: Children often find comfort and stability in familiar surroundings and a structured routine.
• Uncertain living arrangements: Both parents may need to find new accommodation, and this can create logistical challenges in establishing a suitable and consistent living arrangement for the children.
• Impact on school and activities: Changing residences might result in children having to switch schools, potentially affecting their academic progress and social interactions. It can also disrupt extracurricular activities and hobbies they were involved in before the divorce.
• Emotional stress: Divorce is already an emotionally challenging time for children, and selling the family home could add further stress and anxiety.
• Co-parenting challenges: Distance between residences can impact communication, visitation schedules, and the overall ability to cooperate effectively for the well-being of the children.

Remember, these are just hypothetical scenarios and not legal observations. Before making any decisions, it is crucial to seek legal advice to understand all of the implications. 

“The key thing for all clients to remember is that things can and do go wrong. If you do anything prior to the consent order being sealed by the court, you are not covered from a legal perspective. Not even if you’ve agreed everything in mediation. Take legal advice, and be fully aware of the impact of the decisions that you make and the risks that those decisions might pose. If there is any doubt, be careful.” 

Ian Lovatt: Head of Mediation at Mediate UK (FMCA, PPC and CIM).

The Importance of family mediation

Engaging in family mediation during divorce proceedings can help facilitate open and constructive communication between you and your spouse. Mediation provides a neutral and supportive environment where you can discuss matters related to the family home, such as its sale, ownership, or transfer. A skilled family mediator can explain various options available to you and guide you through the decision-making process, covering all the potential advantages and disadvantages.

Through mediation, you and your spouse gain a deeper understanding of your options regarding the family home. Many clients entering mediation, are quite surprised by the range of options available.

Also bear in mind that mediation is often more cost-effective than traditional litigation, as it reduces the need for lengthy court proceedings and associated legal fees. 

Understanding Mesher Orders

The term “Mesher Order” might sound familiar when discussing the sale of the family home.

A Mesher Order is a legal arrangement that allows one party to remain in the family home with the understanding that it will be sold or transferred at a specified later date. This option can be particularly useful when there are dependent children involved. It provides stability and continuity for the children’s living arrangements until they reach a certain age or complete their education.

By opting for a Mesher Order, you may benefit from potential increases in property value over time. Delaying the sale of the family home allows for market conditions to improve, potentially resulting in a higher selling price. Additionally, both parties keep a foot on the property ladder enabling them to build equity during this period, which can be financially advantageous.

Conclusion

It is important to approach the division of assets, particularly the family home, with caution. Carefully timing the sale of your family home in relation to the finalisation of your divorce is a crucial decision that requires thoughtful consideration.

By understanding the potential financial and emotional implications, as well as exploring alternative options, you can make an informed choice that aligns with your long-term goals and protects your interests. Remember, consulting with legal and financial professionals can provide invaluable guidance throughout this process, ensuring a smoother transition and a secure future for you and your family.