Guide to Deferred Sale Dates for Family Residences in Divorce Cases
The California Family Code allows the court, upon request of a party, to order the sale of a family residence involved in a divorce case at a date at some point in the future. The one and only reason that the court may entertain such an order is when it would be in a child’s best interest to defer the sale of the family residence.
Our attorneys in Irvine, California are standing by to talk to you and answer your questions about deferred sales of homes relating to divorce cases. We have litigated this issue in court and we understand the process. The information below is to provide you with a general guide for the analysis of whether the court may order a deferred sale, however, it is advisable to seek the advice of a qualified lawyer who understands the process and procedure, and who understands the information the judge will need for you to be successful in your request.
Section 3801 of the family code sets out the parameters that the court must consider when considering a deferred sale. “The court shall first determine whether it is economically feasible to maintain the payments of any note secured by a deed of trust, property taxes, insurance for the home during the period the sale of the home is deferred, and the condition of the home comparable to that at the time of trial.” In making this analysis, the court is obligated to consider all of the following relevant factors:
- The income of the parent who will remain in the home.
- The amount of spousal support and/or child support to be paid to the parent remaining in the home.
- Any source of funds that would enable the parent remaining in the home to pay the mortgage,, taxes, etc.
If the court determines that the parent remaining in the home will have adequate resources to make all of the necessary payments and meet all obligations, the court then may order a deferred sale of the home but only if such an order “is necessary in order to minimize the adverse impact of dissolution of marriage or legal separation of the parties on the child”. (Family Code section 3802(a)). There are a multitude of factors that the court is obligated to consider to determine whether an order of deferred sale is necessary to minimize the impact of a divorce on a child, including:
- The length of time the child has lived in the home.
- The child’s grade in school.
- The accessibility and convenience of the family residence for the child in relation to school and activities.
- If a child has physical disabilities, and the home has been retrofitted to assist the child, there is a significant likelihood that there would be a deferred sale.
- The emotional detriment a child would face having to move.
- The extent to which the family residences location allows the custodial parent to work.
- The financial ability of each parent to obtain suitable housing.
- The tax consequences to each parent.
- The economic detriment to the noncustodial/nonresident parent in the event that the court does order a deferred sale.
- Finally, any other factor the court deems relevant.
In the event the court does allow the sale of a family residence to be deferred, the court is required to state how long the deferred period will last. Finally, the court is allowed to specify each party’s respective responsibilities to ensure that the property is routinely maintained, and may make orders relative to capital improvements.
For additional information about divorce, custody or other family law issues including the deferred sale of family residences within custody disputes, contact our office today. We provide for a free consult and are conveniently located in Irvine, California near John Wayne Airport.