Dividing a House Can Create Problems

Dividing a House Can Create Problems

Dividing the family home, usually the family’s largest asset, after the divorce can result in years of conflict and litigation, as noted by a recent article in the Minnesota Lawyer. The court order that divides the property is final and, therefore, cannot be modified. Thus, all the court can do with an order dividing property is “implement, enforce or clarify the provisions of the decree, as long as it does not change the parties’ substantive rights.” Redmond v. Redmond, 594 N.W.2d 272, 275 (Minn. Ct. App. 1999).

Permissible court orders to implement property division may include orders:

  • Granting one partner the power to choose the real estate agent;
  • Putting one partner in control of the sale;
  • Setting the listing price if a party has not sold the home by a deadline set in the order dividing the property;
  • Reducing the listing price to attract buyers;
  • Requiring a party to accept an offer within a specific price range;
  • Directing a party to vacate the home where that party’s presence in the home has obstructed efforts to sell the property; and
  • Transferring title from one party to another.

But once a court order has divided property, a court cannot modify that division, and even orders that are otherwise permissible cannot alter the division of the property.

Thus, in Alexandra-Knight v. Knight, A07-2181 (Minn. Ct. App. Nov. 25, 2008), the Minnesota Court of Appeals held that the district court abused its discretion in ordering the title to the marital home be transferred from the ex-husband to the ex-wife so that she could sell the house. In that case, the divorce decree granted the ex-husband title to the marital home with a lien in favor of the ex-wife, and the lien was to be paid within 75 days of entry of judgment, with interest accruing after the 75th day. The ex-husband was also required to refinance or release the ex-wife’s name from the mortgage within eight months after the divorce decree was entered, and if he failed to meet his obligations, he was required to sell the home “immediately.”

Because he did not meet his obligations or sell the home, the district court had ordered the title transferred to the ex-wife for her to sell the house. The Court of Appeals found that that order significantly changed the ex-husband’s property rights in several ways, including (1) having an unidentified realtor, rather than the parties, set the sales price; (2) not requiring that proceeds in excess of the lien be provided to the ex-husband; and (3) denying the ex-husband his title to the home and any equity he was entitled to. Thus, the court said that an order for title transfer and sale could be an appropriate means to implement a divorce decree, but, in this case, the court order did not preserve the ex-husband’s equity in the home and, therefore, the order was an abuse of discretion.

Contact a Family Law Attorney for Help

If you and your spouse own a home or other property together, you should consult a family law attorney to assist in drafting a settlement agreement that will reduce the opportunities for mischief in dividing the property. And if you have an order dividing property and your ex-spouse is not complying with the order, you should consult Jeffrey R. Arrigoni Attorney at Law for help today.