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When Is It Possible to Keep the FAMILY RESIDENCE From Being Sold?

Q. My wife cares for our children, but now she insists on keeping the residence that I moved out of 3 months ago. Is it true that it will be ordered sold or that she has to buy me out in our divorce?


Not necessarily. If she has an experienced attorney, she may seek a "deferred sale of home" order. These are formerly known as "Duke" orders and once (when I was a puppy attorney) were quite common - today they are rare. However, upon a proper showing a trial judge may issue them.

A "deferred sale of home order" means an order that temporarily delays the sale and awards the temporary exclusive use and possession of the family home to the custodial parent of a minor child or child for whom support is authorized under FC sections 3900 and 3901 or under FC §3910. It is authorized whether or not the custodial parent has sole or joint custody. Such an order is made to minimize the adverse impact of dissolution of marriage or legal separation on the welfare of the child. [FC §3800(b)].

If one of the parties requests a deferred sale of home order, the judge must first determine whether it is economically feasible to maintain [FC §3801(a)]:

  • The payments of any note secured by a deed of trust, property taxes, and 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 determination, the court must consider all of the following [FC §3801(b)]:

  • The resident parent's income;
  • The availability of spousal support, child support, or both spousal and child support; and
  • Any other sources of funds available to make those payments.

The legislative intent behind these determinations include [FC §3801(c)]:

  • Avoiding the likelihood of possible defaults on the payments of notes and resulting foreclosures,
  • Avoiding inadequate insurance coverage,
  • Preventing deterioration of the condition of the family home, and
  • Preventing any other circumstance that would jeopardize both parents' equity in the home.

A judge asked to consider the issue will consider the following in determining whether a deferred sale is necessary to minimize the adverse impact of dissolution or legal separation on the child. [FC §3802(a)]. Factors considered in exercising discretion include all of the following [FC §3802(b)]:

  • The length of time the child has resided in the home;
  • The child's placement or grade in school;
  • The accessibility and convenience of the home to the child's school and other services or facilities used by and available to the child, including child care;
  • Whether the home has been adapted or modified to accommodate any physical disabilities of a child or a resident parent in a manner that a change in residence may adversely affect the ability of the resident parent to meet the needs of the child;
  • The emotional detriment to the child associated with a change in residence;
  • The extent to which the location of the home permits the resident parent to continue employment;
  • The financial ability of each parent to obtain suitable housing;
  • The tax consequences to the parents;
  • The economic detriment to the nonresident parent of a deferred sale of home order; and
  • Any other factors the court deems just and equitable.
T.W. Arnold

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