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.
If one of the parties requests a deferred sale of home order, the judge
must first determine whether it is economically feasible to maintain
- 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
- 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
- Avoiding the likelihood of possible defaults on the payments of notes and
- 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
- 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
- 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.