Navigating the Sale of a Shared Home After Divorce: 4 Options to Consider
When a couple breaks their marital or emotional bond, one of the issues that generates conflict is the sale of their common home.
It is easier to end the marriage or de facto union than to free yourself from the ownership of a community home or a home half-bought by a couple. But don’t worry, there are solutions.
Even if your ex refuses to sell his or her share of the house, the law protects you and regulates options for selling the common home.
We are facing a tricky topic, which mixes various legal concepts, but we are going to try to explain it to you in a simple way.
4 options to allocate or sell the common house
Let’s imagine that Juan and María, during their marriage, bought a house, they have no children and, after the divorce , each one owns 50% of the house.
1. Agreement between the parties to dissolve the condominium
In this case, rather than forcing, we invite you to talk to your ex to make him see reason and resolve the conflict.
Have you got the agreement ? !! Congratulations!!
It will not be necessary to start any judicial procedure, in this way, you will avoid fights and greater expenses.
It will be enough to sign a condominium extinction deed before a Notary , granting María the ownership of 100% of the house and Juan the monetary value of his 50%, which María must pay Juan.
This condominium termination option is more economical than the sale.
At the tax level, the extinction of a condominium is taxed by Legal Acts Documents (between 0.5% and 1.5%). However, the purchase is taxed by the Property Transfer Tax (between 6% and 11%).
2. Conciliation act
If there is no good understanding, but you do not want to take legal action against your ex, the law offers you the opportunity to reach a conciliation.
You must present a conciliation document to the Court of First Instance of your ex’s domicile, requesting to reach an agreement on the sale.
There are models of conciliation forms that you can request in the Court itself, since, for conciliation, you do not need a Solicitor or Lawyer , although it is advisable to have the advice and support of a specialist lawyer to increase the chances of success.
Once your ex has received the conciliation document, a conciliation ceremony is held. In this act, you can reach an agreement to sell the house .
It is important that you know that this attempt at conciliation does not force your ex to attend the day and time designated for the celebration of the conciliation act.
Following our example: Juan presents a conciliation paper requesting María to sell the common house.
There can be 3 circumstances:
- María attends the conciliation ceremony and reaches an agreement with Juan to sell the house. Great, that’s it for your conflict.
- María attends the event and reaches an agreement with Juan, but María does not comply. In this case, Juan must request the Court to comply with the agreement.
- María does not attend or there is no agreement, Juan has no choice but to initiate legal action against María.
3. Voluntary auction
If you do not reach an agreement with your ex to sell the house, it may happen that you agree on the sale but not on the sale price.
The Voluntary Jurisdiction Law regulates the possibility of requesting the voluntary auction of a common home.
This is a mutual agreement procedure , that is, Juan and María, according to our example, must agree to auction the house.
In the voluntary auction request, among other things, the value of the common home for which it will be auctioned (appraisal value) will be stated.
Nor, in this case, is the intervention of a Lawyer and Attorney necessary, but the advice of good professionals is always important.
4. Judicial action for termination of condominium
As always, we advise you to use any of the friendly methods before starting legal proceedings against your ex.
In this contentious procedure, the intervention of a Lawyer and Attorney is mandatory.
In addition, a judicial expert, appointed by the Court, must intervene to value the house, in order to set the auction value .
Ultimately, the house will be put up for public auction, we will have no control over the final price, and the proceeds from the auction will be divided between María and Juan.
Another option: Go to companies that buy proindivisos
There are companies that are responsible for carrying out all the procedures to achieve the sale of a property that belongs to several people in proindiviso .
These professionals take care of all the paperwork , they may even buy your share in the house and then resolve the conflict with your ex.
What happens if my ex has use of the house?
If the divorce decree attributes the use of the common home to either spouse , this right cannot be altered.
We return to the previous example, now Juan has the right to use the home according to the divorce decree, until a certain date.
This recognition of the use of the home does not prevent the sale of the home, but respects the right of use during the time granted.
That is, the common home may be sold, by agreement or by auction, but the purchaser must respect the use granted to Juan during the time established in the divorce decree.
The same occurs if the use of the home is attributed to the children of Juan and María, whether under exclusive or shared custody .